2015 (12) TMI 660 - AT - Central Excise

Waiver of pre deposit - Clandestine manufacture and removal of goods - Shortage of goods found - Held that - At night of 2nd and 3rd October, 2012, when the Jurisdictional Central Excise Officers visited the unit along with two punch witnesses at 00.30 hours, the factory was found to be working inasmuch as the generator was running. The fact that on the arrival of the Central Excise Officers, the labourers including the authorized signatory switched off the generator and running away taking advantage of the darkness and that subsequently when the officers switched on the generator and the lights, and inspected the factory, they found that seals of the machines had been broken and the same were being operated, as also not disputed. It is also a fact that when the stock taking of the stock of the finished goods was conducted, there was huge shortage in the stock of the finished cigarettes on which the duty involved was ₹ 62,42,566/-. The proprietor Shri Sudhir Kapoor who came in the morning also accepted the shortage. In these circumstances, we are of the prima facie view that even if the relied upon documents are not supplied, the non-supply of relied upon documents has not vitiated the proceedings. - this is not the case of total waiver - Partial stay granted.

Issues:
Violation of principles of natural justice, Duty demand based on alleged shortage of finished cigarettes, Non-supply of relied upon documents, Ex-parte order, Requirement of pre-deposit, Stay application, Compliance with stock taking, Confiscation of unaccounted cigarettes, Imposition of penalties.

Violation of principles of natural justice:
The appellant contended that the duty demand was based on alleged shortage without providing copies of relied upon documents, hindering their ability to respond to the show cause notice. They argued that the Commissioner's order was ex-parte as they were not heard, and the hearing notice was not received due to the factory being closed. The appellant claimed the order violated natural justice principles. They requested a remand for de-novo adjudication after receiving relied upon documents and a personal hearing.

Duty demand based on alleged shortage of finished cigarettes:
The Commissioner confirmed a duty demand of &8377; 64,42,566/- on the shortage of finished cigarettes, along with interest and penalties. The appellant's factory was found operating at night with unauthorized manufacturing of cigarettes, leading to discrepancies in stock taking. The duty demand was calculated based on the shortage discovered during the inspection. The appellant disputed the demand, citing lack of supplied documents and procedural irregularities.

Non-supply of relied upon documents:
The appellant argued that they were not provided with relied upon documents, including the stock taking panchnama, despite requesting them. They claimed this hindered their ability to respond to the show cause notice, leading to an unfair adjudication process. The non-supply of documents was a key point of contention in the appeal, as it affected the appellant's defense against the duty demand.

Ex-parte order:
The appellant alleged that the Commissioner's order was ex-parte as they were not given an opportunity to present their case. They highlighted that the factory was closed, and the hearing notice was not received, impacting their ability to participate in the adjudication process. The ex-parte nature of the order was a significant concern raised by the appellant in their appeal.

Requirement of pre-deposit and Stay application:
The appellant requested a waiver of the pre-deposit requirement for hearing their appeal, citing procedural irregularities and the need for a fair adjudication process. They sought a stay on the recovery pending the appeal's resolution. The issue of pre-deposit and the stay application were crucial aspects of the appellant's plea for a fair hearing and consideration of their case.

Compliance with stock taking and Confiscation of unaccounted cigarettes:
During the inspection, a significant shortage of finished cigarettes was discovered, leading to duty demands and penalties. Loose cigarettes found on the manufacturing floor were seized due to non-accounting in the records. The Commissioner's order included confiscation of unaccounted cigarettes and imposition of penalties on the appellant and the authorized signatory, adding to the complexity of the case.

Imposition of penalties:
The Commissioner imposed substantial penalties on the appellant and the authorized signatory for duty evasion and procedural violations. Penalties were levied under the Central Excise Rules and the Central Excise Act, adding a punitive dimension to the case. The imposition of penalties was a significant outcome of the adjudication process, reflecting the seriousness of the alleged violations.

This detailed analysis of the judgment covers all the relevant issues involved in the case, providing a comprehensive overview of the legal proceedings and the arguments presented by the appellant and the respondent.

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