2016 (3) TMI 157 - AT - Central Excise

Clandestine removal of LPG Cylinder from the factory - Duty demand and imposition of penalty - allegation of clandestine removal of goods has been leveled on the ground that the income tax dues have been promptly paid by the appellant without contesting the liability - Held that - Central Excise duty demand has been confirmed by the authorities below solely based on the demand confirmed by the Income Tax department. On arriving at such conclusion the Department has not carried out any independence enquiry to ascertain as to whether the goods were removed clandestinely without payment of Central Excise duty. Documents/ records maintained by the appellant regarding manufacture and clearance of goods have also not been verified. Further there is no evidence regarding receipt of excess raw material/ input goods required for manufacture of the alleged clandestine removal of goods. No investigation has been taken place at the buyer s end to verify the particulars regarding receipt of unaccounted for goods who are the reputed public sector oil companies. Since LPG cylinders are not general merchandise capable of bought and sold in the common market place and is controlled under the stringent norms prescribed by BIS I am of the considered opinion that the allegation of clandestine removal without proper verification of books cannot be a defensible ground for confirmation of duty demand and for imposition of penalty. - Decided in favour of assessee

Issues:
1. Central Excise demand upheld by Commissioner (Appeals)
2. Allegation of clandestine removal of LPG cylinders without payment of Central Excise duty
3. Verification of records and investigation at the buyer's end
4. Applicability of Bureau of Indian Standards (BIS) guidelines
5. Legal precedents cited by both parties

Central Excise Demand Upheld:
The appeal was filed against the order by the Commissioner (Appeals) upholding a Central Excise demand of Rs. 12,38,400 along with an equal penalty imposed in the adjudication order. The case originated from an audit at the appellant's factory premises, where it was discovered that an income tax demand of Rs. 57,00,000 was paid without contest. This led to the Central Excise Department initiating proceedings alleging clandestine removal of LPG cylinders worth the same amount, resulting in the duty demand and penalty.

Allegation of Clandestine Removal:
The appellant's advocate argued that the LPG cylinders manufactured were supplied to public sector oil companies under strict BIS guidelines. It was emphasized that the cylinders met BIS specifications and were subject to quality control. The advocate contended that no verification was conducted at the factory or the buyer's end, making the allegation of clandestine clearance unsubstantiated. Legal precedents, including the cases of CCE vs Saini Industries Ltd. and CCE Ludhiana vs Zoloto Industries, were cited to support the appellant's position.

Verification and Investigation:
The Department, represented by the DR, maintained that since the appellant paid the income tax demand promptly without contest, it indicated clandestine removal of goods without Central Excise duty payment. However, the Tribunal noted the lack of independent inquiry or verification of records regarding the alleged removal. No investigation was conducted at the buyer's end, which consisted of reputable public sector oil companies. The stringent control of LPG cylinders under BIS norms was highlighted as a factor.

Bureau of Indian Standards (BIS) Guidelines:
The Tribunal emphasized the importance of adhering to BIS guidelines for LPG cylinders, stating that the goods must meet specific quality standards before being marketable. The lack of verification of records and absence of evidence regarding excess raw materials raised doubts about the clandestine removal allegation.

Legal Precedents:
In its decision, the Tribunal referenced the cases of Zoloto Industries and Saini Industries to support its ruling. It highlighted that without admission of clandestine activities by the assessee and in the absence of corroborative evidence, duty demand cannot be confirmed. The Tribunal concluded that the allegation of clandestine removal without proper verification could not be a valid basis for confirming the duty demand and imposing a penalty.

Conclusion:
Ultimately, the Tribunal set aside the impugned order, allowing the appeal in favor of the appellant. The decision was based on the lack of concrete evidence supporting the allegation of clandestine removal of cylinders without payment of Central Excise duty, emphasizing the necessity for proper verification and investigation before confirming such demands.

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