2016 (1) TMI 62 - AT - Central Excise

Duty demand - shortages in inputs received and goods which are part of work in progress - Held that - They are contesting the findings of the Commissioner (Appeals) in paras 6.1 and 7 of the impugned order. We find that apart from arriving at contradictory findings regarding work-in-progress, the Commissioner (Appeals) failed to consider the explanation offered by the assessee about the accounting process and clearance of all production to 100% EOU. No cross verification on receiptient s end or analysis of accounting process as explained by assessee has been done by the lower authorities. The stock of work-in-progress keeps on changing during the manufacturing process from one stage to another. A combined examination of items in various stages of processing is required. No finding has been recorded on this as well as on the claim of certain destructive tests carried out by assessee - Commissioner (Appeals) held that no clandestine clearance of castings has been evidenced, he upheld demand of duty on castings without any reasoning. His finding that cenvat credit available on ingots is to be reversed is without any basis and, in any case, the final confirmation of demand of duty on castings using such finding is totally misplaced. - Decided in favour of assessee.

Issues:
1. Appeal against order of Commissioner (Appeals) dated 1.6.2006 by both Revenue and assessee.
2. Allegations of shortages in inputs, undervaluation of goods, and wrong availment of credit.
3. Contesting demand upheld by Commissioner (Appeals) and dropping of penalty.
4. Contradictory findings by Commissioner (Appeals) on work-in-progress and demand of duty on castings.
5. Payment of disputed amount before show cause notice and penal liability.
6. Examination of accounting process and clearance of production to 100% EOU.
7. Reversal of cenvat credit wrongly taken by assessee and undervaluation of goods cleared to sister unit.

Analysis:

1. The case involved appeals by both the Revenue and the assessee against the order of the Commissioner (Appeals) dated 1.6.2006. The Central Excise officers found shortages in inputs, undervaluation of goods, and wrong availment of credit during a stock verification at the assessee's unit. The Commissioner (Appeals) confirmed part of the demand but set aside the penalty imposed on the assessee.

2. The assessee contested the demand upheld by the Commissioner (Appeals) while the Revenue appealed against the dropping of the penalty. The counsel for the appellant argued that there were errors and contradictions in the impugned order. The Commissioner (Appeals) made contradictory findings regarding work-in-progress and failed to consider the explanation offered by the assessee about the accounting process and clearance of production to 100% EOU.

3. The Tribunal found that the Commissioner (Appeals) upheld the demand of duty on castings without sufficient reasoning and reversed cenvat credit available on ingots without a valid basis. The Tribunal concluded that the demand of duty on castings was misplaced. Therefore, the assessee succeeded in contesting the impugned order, and their appeal was allowed.

4. Regarding the Revenue's appeal, the Tribunal noted that a certain amount of cenvat credit was wrongly taken by the assessee as inputs on tubes instead of capital goods. The assessee reversed this amount upon identification. The Tribunal found no justification for imposing an equal penalty in this case. Similarly, on the issue of undervaluation of goods cleared to a sister unit, the Tribunal found no valid reasoning for the imposition of a penalty. Consequently, the appeal by the Revenue was dismissed.

5. The Tribunal emphasized that merely paying the disputed amount before receiving a show cause notice does not absolve the assessee from penal liability for contravening legal provisions. The Tribunal thoroughly examined the issues raised by both parties and made decisions based on the merits of each argument presented during the proceedings.

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