2019 (2) TMI 2040 - HC - Central Excise

Clandestine removal - shortage/excess in the Annual Shortage and Surplus Report - HELD THAT - The Tribunal has relied upon in the case of M/S. SAIL VERSUS COMMR. OF CENTRAL EXCISE, BOLPUR 2018 (3) TMI 1684 - CESTAT KOLKATA where it was held that The issue decided in appellant own case ROURKELA STEEL PLANT SAIL VERSUS COMMISSIONER OF C. EX., BHUBANESWAR 2000 (7) TMI 726 - CEGAT, KOLKATA , where it was held that There is nothing on record to show that the appellants have been indulging into excess clearances without payment of duty. The appellants have satisfactorily explained the difference between the figures as reflected in annual financial account and those entered in RG-I for each and every item. It is true that the circumstances of the case relied on by the Tribunal were similar to those at hand but what was the stock notionally determined and actually determined in the case at hand, how it was adjusted and not being reflected in the Central Excise records were not explained at all in the impugned judgment and order of the Tribunal. So it might be said that the broad dispute in these two cases was similar. But that the facts were identical had to be established before applying the decision of the earlier case to the one at hand. Appeal disposed off.

Summary

Issues: Appeal under Section 35G of the Central Excise Act, 1944.

Analysis:
The High Court, after hearing the arguments from both parties, concluded that the order of the Tribunal dated 13th March, 2018 could not be upheld and needed to be remanded for fresh consideration. The Court highlighted that the Tribunal erred in not adequately explaining the alleged shortage in stock, which was argued to be notional and not reflected in the Central Excise records. The Court emphasized the importance of establishing the identical facts between the current case and the precedent case before applying the earlier decision. The matter was directed to be disposed of by the Tribunal within three months of the order communication.

Conclusion:
The High Court, comprising of Justice I. P. Mukerji and Justice Md. Nizamuddin, addressed an appeal under Section 35G of the Central Excise Act, 1944. The Court found the Tribunal's order dated 13th March, 2018 unsustainable and ordered a remand for fresh consideration. The Court pointed out the lack of explanation regarding the alleged notional shortage in stock, emphasizing the need to establish identical facts before applying precedent decisions. The Tribunal was directed to hear the parties and dispose of the appeal within three months. The appeal (CEXA 93 of 2018) along with the stay application (GA 3204 of 2018) was consequently disposed of.