2016 (4) TMI 931 - AT - Central Excise

Demand of interest - Improper stock taking method - Whether certain shortages of sponge iron detected by the officers during a joint physical stock verification were correct or not - Authorized signatory was present during the course of such stock-taking and the method adopted and the duty liability was accepted by appellants. Also the duty involved on the shortages of finished goods was also paid on the same day without protest. Held that - weighment of goods was done by a joint physical stock verification where authorized signatory was also present and the methodology was also approved by the appellants. Any retraction of statement or questioning the methodology of weighment can be made before the issue of Show Cause Notice so that Revenue can take appropriate measures for conducting additional investigations. As the stock-taking was done with the concurrence of the appellants, therefore, at a later stage, after completion of investigation and issue of Show Cause Notice, appellant cannot turn around and take a stand that stock-taking was inappropriately done. In view of the above the aspect of shortages of goods is established and the duty demand voluntarily paid by appellant No.1 without protest is required to be confirmed. So far as payment of interest on the confirmed demand is concerned, it is observed that shortage was detected on 12.08.2011 and the corresponding demand was also paid by appellant No.1 on the same day, therefore, there is no interest liability on appellant No.1 on this account. Clandestine removal of shortages detected and imposition of penalty - Held that - in view of the settled propositions of law, the act of clandestine removal cannot be held to be established. Accordingly, no penalties can be imposed. - Decided partly in favour of appellant

Summary

Issues:
1. Shortages of sponge iron detected during stock verification.
2. Methodology of stock-taking and duty liability acceptance by the appellants.
3. Dispute over the correctness of shortages and duty payment.
4. Applicability of case laws on clandestine removal and penalty imposition.
5. Confirmation of duty demand and interest liability.

Analysis:

Issue 1: Shortages of sponge iron detected during stock verification
The case revolves around the detection of shortages (95.790 MT) of sponge iron during a joint physical stock verification on 12.08.2011. The authorized signatory of the appellants was present during the stock-taking, and the duty liability on the shortages was accepted and paid on the same day without protest. The statement of the authorized signatory was not retracted, and the methodology of stock-taking was questioned only in response to the subsequent Show Cause Notice.

Issue 2: Methodology of stock-taking and duty liability acceptance
The appellants contested the methodology of stock-taking after the Show Cause Notice was issued, claiming that the method was incorrect. However, it was noted that the stock-taking was done with the appellants' concurrence, and any objections should have been raised before the issuance of the notice to allow for additional investigations by the Revenue.

Issue 3: Dispute over correctness of shortages and duty payment
The tribunal observed that the shortages of goods were established, and the duty demand voluntarily paid by the appellants without protest needed to be confirmed. The tribunal also ruled that there was no interest liability on the appellants as the shortage was detected and paid for on the same day.

Issue 4: Applicability of case laws on clandestine removal and penalty imposition
The appellants cited various case laws to argue against the imposition of penalties based solely on shortages found during stock verification. The tribunal referred to precedents such as CCE v. Minakshi Castings and Swastick Tubes Pvt. Ltd. v. CCE, Kanpur, where it was held that mere shortages could not be the sole basis for alleging clandestine removal and imposing penalties.

Issue 5: Confirmation of duty demand and interest liability
Based on the observations and settled legal principles, the tribunal concluded that the act of clandestine removal was not established. Consequently, no penalties could be imposed on the appellants. The appeals were allowed with respect to the imposition of penalties and charging of interest.

In conclusion, the tribunal confirmed the duty demand but ruled in favor of the appellants regarding penalties and interest liability, emphasizing the importance of proper stock-taking methodology and the need for evidence beyond mere shortages to establish clandestine removal.