2016 (1) TMI 1009 - AT - Central Excise

Shortage of raw tobacco and coloured tobacco - clandestine removal - demand under proviso to Section 11A(2) and also imposed a penalty of equal amount under Section 11AC along with interest - Held that - Revenue has tried to prove the charge of clandestine removal merely on the basis of presumptions and assumptions and when the shortage has been explained with verifiable facts with regard to raw tobacco and coloured tobacco, but the Revenue did not verify the facts and in the absence of proper verification of factual aspects, we are of the considered view that the Revenue has failed to prove the clandestine removal and also the demand is time barred. Consequently, we allow the appeal of the appellant by setting aside the impugned order. - Decided in favour of assessee

Summary

Issues:
Alleged shortage of raw and coloured tobacco, contravention of Central Excise Rules, demand of duty, penalty, interest, appeal against order-in-appeal, maintenance of records, verification of shortages, presumption of clandestine removal, limitation period for demand.

Analysis:
The case involves an appeal against an order-in-appeal upholding the decision of the adjudicating authority regarding the alleged shortage of raw and coloured tobacco by the appellant, a manufacturer of branded chewing tobacco. The appellant availed cenvat credit but faced a show cause notice demanding duty of Rs. 2,19,127 based on a search revealing unaccounted tobacco conversion and removal without payment of central excise duty, purportedly contravening Central Excise Rules. The Deputy Commissioner confirmed the demand and imposed a penalty and interest. The Commissioner (Appeals) upheld this decision, leading to the current appeal.

The appellant argued that the shortage was explained by their manager, maintaining compliance with Rule 10 of the Cenvat Credit Rules, 2004, emphasizing that the charge of clandestine removal relied on presumptions and lacked tangible evidence. They contended that all materials were verifiable on-site, maintaining daily stock accounts and issue slips for cenvatable inputs. The appellant detailed the manufacturing process, highlighting that the shortage discrepancies were due to the manufacturing process steps. They asserted that the demand was time-barred, citing the maintenance of records and transparency, challenging the invocation of the extended period under Section 11A(1) of the Central Excise Act, 1944.

In contrast, the Revenue supported the findings of the Commissioner (Appeals). The Tribunal analyzed Rule 10 of the Cenvat Credit Rules, emphasizing the requirement for proper record maintenance by the assessee. The Tribunal noted the manager's explanation for the shortages, criticizing the Revenue's reliance on the absence of issue slips and lack of verification. Citing legal precedents, the Tribunal highlighted the necessity of tangible evidence for charges of clandestine removal and the limitations on presumptions and assumptions. The Tribunal agreed with the appellant that the demand was time-barred, as the Revenue failed to verify facts and prove clandestine removal, ultimately allowing the appeal and setting aside the impugned order.

In conclusion, the Tribunal found the Revenue's case lacking in substantiated evidence, relying on presumptions and assumptions regarding the alleged clandestine removal. The failure to verify the explained shortages and the time-barred nature of the demand led to the Tribunal's decision to allow the appeal, emphasizing the importance of tangible evidence and proper verification in excise duty cases.