2016 (3) TMI 991 - AT - Central Excise

Confirmation of demand and penalty on the quantity of goods shown in the respective small chits/papers - Held that - Merely because the entries mentioned in the rough chits did not tally with the production/clearance register would not by itself lead to a conclusion that the quantity of goods mentioned in those private chits were clearance without payment of duty. On the other hand, on scrutiny of the reconciliation statement submitted by the appellant during the course of hearing, Revenue has fairly accepted that approximately 50% of the quantity mentioned in the private chits had been cleared on payment of duty as it conforms to the respective Central Excise invoices issued during the relevant period. Also, as find from the statements of two customers, namely, Shri Amar Kasera and Shri Sunil Kr.Agarwal recorded by the department that they have purchased the goods against excise invoices and the quantity mentioned in the chits were not received by them. In absence of cogent and corroborative evidences showing production and removal of goods without payment of duty, entries reflected in private chits cannot itself be a ground for confirmation of demand. Therefore, the confirmation of demand on this count is liable to set aside. Demand on cancelled invoices - Held that - Find force in the contention of the ld.Advocate for the Appellant. In his statement dated 30.11.2004 Shri Ravinder Prasad, Director of the appellant in response to question No.13 has explained that in view of the fact that the levy was new and the appellant had no experience in the field of excise, therefore, mistakes occurred in writing the invoices resulting into frequent cancellations. This statement has not been rebutted by the department by making necessary investigation with the consignees mentioned in the respective cancelled excise invoices. In absence of substantial evidences of clearance of goods against cancelled invoices, it is difficult to accept that the appellant indulged in clearance of goods without payment of duty against cancelled invoices. Therefore on this count also the confirmation of demand fails. Demand on Oxygen gas cleared in the year 2002-03 - Held that - the appellant themselves had admitted clearance of the Oxygen gases after March, 2003 against the agreement dated 15.03.2003 which has been confirmed by the purchaser Shri Deepak Kr.Agarwal in his statement dated 18.01.2005. In the said statement Shri Deepak Kr.Agarwal has categorically stated against question No.3 that he is related with the appellant from 15th day of March, 2003 and they have been purchasing gases only on the basis of agreement dated 15.03.2003. Therefore, in absence of evidences that the appellant earlier also sold gases without payment of duty, it is difficult to accept the allegation of the Revenue that on the basis of the said agreement dated 15.03.2003 demand could be raised for earlier period also. Hence on this count also the confirmation of demand fails. Considering that the appellant has admitted certain liability and not pleaded about non-imposition of penalty against confirmed undisputed liability, therefore, penalty under section 11AC would remain against the confirmed undisputed liability. But the appellant would be entitled to discharge 25% of the penalty subject to fulfillment of the conditions laid down under section 11AC Further, the redemption fine imposed by the adjudicating authority is too harsh. The redemption fine is thus reduced from ₹ 1.00 Lakh to ₹ 75,000/-(Rupees Seventy Five Thousand only). - Decided partly in favour of assessee

Summary

Issues:
- Confirmation of demand based on rough chits and hand-written papers
- Duty liability on cancelled invoices
- Duty liability on Oxygen gases prior to March 2003

Confirmation of Demand based on Rough Chits and Hand-Written Papers:
The appellant disputed the confirmation of demand on the basis of rough chits and hand-written papers recovered from their premises. The appellant argued that the entries in these documents were related to customer inquiries and did not signify clearances without payment of duty. They provided a reconciliation statement showing that the goods mentioned in the rough sheets were cleared on payment of duty supported by relevant excise invoices. The appellant also presented statements from customers denying receipt of goods mentioned in the chits without payment of duty. The Tribunal found that the authorities had not adequately analyzed the evidence to establish that the goods mentioned in the rough chits were cleared without duty payment. Upon scrutiny, it was revealed that around 50% of the quantity mentioned in the chits had been cleared on payment of duty as per excise invoices. The Tribunal concluded that without concrete evidence of goods being produced and removed without duty payment, the entries in the private chits were insufficient to confirm the demand, leading to setting aside of the confirmation.

Duty Liability on Cancelled Invoices:
Regarding the duty liability on cancelled invoices, the appellant argued that due to the new levy on Vanaspati in 2002-2003, errors occurred in writing invoices leading to cancellations. The Tribunal noted that the appellant's director explained the invoicing mistakes due to lack of experience in excise matters, which was not rebutted by the department through investigations with consignees. In the absence of substantial evidence showing clearance of goods against cancelled invoices, the Tribunal found it challenging to accept that the appellant had cleared goods without duty payment against these invoices. Consequently, the confirmation of demand based on cancelled invoices was deemed unsustainable and failed.

Duty Liability on Oxygen Gases Prior to March 2003:
The appellant contested the duty liability on Oxygen gases vented to air before March 2003, arguing that duty was not payable on such gases as per a Board's Circular. They claimed that sales of Oxygen gas began after March 2003 as evidenced by an agreement with a purchaser. The Tribunal observed that the appellant admitted to selling Oxygen gases post-March 2003 based on the agreement dated 15.03.2003, confirmed by the purchaser's statement. Without evidence of earlier sales without duty payment, the Tribunal found it unreasonable to impose demand based on the agreement dated 15.03.2003 for a prior period. Consequently, the confirmation of demand on Oxygen gases prior to March 2003 was deemed unjustified and failed.

In conclusion, the Tribunal set aside the confirmation of demand on the issues related to rough chits, cancelled invoices, and Oxygen gases prior to March 2003. The Tribunal upheld the penalty under section 11AC against confirmed undisputed liability, allowing the appellant to discharge 25% of the penalty under the specified conditions. The redemption fine imposed was reduced, and the impugned order was modified accordingly.