2015 (12) TMI 248 - AT - Central Excise

Duty demand - Clandestine removal of goods - Shortage of goods - Held that - While in the factory of UL shortage of 73.904 MTs. had been found, in the factory of UTL there was excess stock of 73.904 MTs. of mixed woollen yarn and as such, we are of the view that the alleged shortage in the factory of UL matches with the excess found in the factory of UTL. We also take note of the fact that the appellant under their letter dated 5.4.2000 addressed to the Asstt. Commissioner had intimated that they have identified about 75 MTs. of moth and mildew affected wool yarn and have decided to store it separately so that the other yarn do not get affected and that they intend to shift the same to other 100% EOU. UTL which is adjacent to premises of UL. This letter bears the stamp of the office of the Asstt. Commissioner and the receipt of this letter as such is not disputed. It is also seen that on 16.06.2000, the statement of Shri D.K. Kothari, General Manager had been recorded under Section 14 of the Central Excise Act, 1944 and on being questioned about shortage, had stated that this yarn has been shifted to another godown, as the yarn was damaged and moth eaten and as such, it is not the shortage. As regards the shortage of 1.603 MTs. of wool waste, this shortage is not denied and the explanation given by the appellant is that the same may be due to wrong recording of weight of the wood waste, as the wool being hygroscopic in nature tends to gain weight on account of absorption of moisture. But in our view, this explanation does not explain the shortage, as the stocktaking in the factory had been done during monsoon period in the month of June, 2000 when there is no question of yarn losing weight. In view of this, the duty demand of ₹ 12,564/- on the shortage of 1.603 MTs. of wool waste is upheld. - Decided partly in favour of assessee.

Summary

Issues:
Alleged shortage of yarn and wool waste in the factory of UL, discrepancy in stocktaking, duty demand, penalty imposition, shifting of goods to UTL, hygroscopic nature of wool waste.

Analysis:
The case involved a dispute regarding the alleged shortage of yarn and wool waste in the factory of UL, a 100% EOU. The central excise officers found a shortage of 73.904 MTs of yarn and 1.603 MTs of wool waste during stocktaking. The Department issued a show cause notice for duty recovery and penalty imposition. The appellant argued that the shortage of wool waste was due to wrong weight recording, as wool gains weight due to moisture absorption. However, the shortage of yarn was contested, claiming it was shifted to the godown of UTL due to damage, as stated in a letter and by the General Manager. The excess stock of similar yarn found in UTL supported this claim.

The Tribunal noted that both UL and UTL were located in the same compound, and the shortage in UL matched the excess stock in UTL. The appellant's letter informing about shifting damaged yarn and the General Manager's statement were crucial. Despite the appellant's submissions and evidence, the Commissioner did not address these points adequately. The Tribunal found the shortage in UL not genuine, as the goods were shifted to UTL as per the appellant's disclosure. The duty demand and penalty on this count were deemed unsustainable.

Regarding the wool waste shortage, the appellant's explanation of weight gain due to moisture was rejected, as the stocktaking was during the monsoon period. Thus, the duty demand for the wool waste shortage was upheld. The Tribunal set aside the duty demand and penalty related to the yarn shortage, upholding only the duty demand for the wool waste shortage. The appeal was disposed of accordingly.