2006 (11) TMI 104 - AT - Central Excise

Penalty Shortage of raw material on which credit was availed Shortage was due to improper weighment Credit reversed immediately on detection No evidence of clandestine removal Demand is liable to be upheld but penalty reduced

Summary

Issues:
1. Imposition of penalty and appropriation of credit amount due to shortage of raw material.
2. Appeal against the order of penalty reduction by Commissioner (Appeals).
3. Remand by the High Court for fresh decision on penalty levy.
4. Consideration of evidence for clandestine removal of goods.
5. Requirement of proof beyond mere allegations for clandestine removal.
6. Lack of pinpointing responsibility for weighment mistake by the respondent.

Analysis:
The case involves the imposition of penalty and appropriation of credit due to a shortage of raw material at the respondent's unit. Central Excise officers found the shortage during an investigation, leading to the reversal of the credit amount by the respondent. Subsequently, a penalty was imposed under Rule 173Q of the Central Excise Rules. The Commissioner (Appeals) set aside the penalty, which was further appealed by the revenue. The Tribunal reduced the penalty to Rs. 15,000. However, the High Court remanded the case back to the Tribunal for a fresh decision on the penalty levy based on specific court orders.

Upon review, it was noted that the shortage of raw material was due to improper weighment, as admitted by the respondent's Director. The respondent voluntarily debited the amount in their register, acknowledging the error. There was no evidence of clandestine removal, and suspicion or shortage alone does not prove such removal. The respondent failed to identify the responsible party for the weighment mistake and did not challenge the confirmed duty amount during the proceedings.

Considering the circumstances, the Tribunal upheld the demand confirmation but modified the penalty aspect. The respondent was held liable for penal action, with a penalty of Rs. 15,000 deemed appropriate for justice. The appeal of the revenue was disposed of accordingly. The judgment emphasizes the importance of concrete evidence in cases of alleged clandestine removal and the need for accountability in addressing errors affecting duty payments.