2016 (6) TMI 867 - AT - Central Excise

Demand if duty of excise on clandestine removal on best judgement method - Bonafide mistake - extended period of limitation - It was contended that, the appellant is a maker of sweets/biscuits/pastries. Sweets, though excisable are exempted from duty. Biscuits/pastries are dutiable and attract duty on MRP basis. The appellant was not aware of this and therefore did not pay duty on these goods. Held that - The appellants were manufacturing both excisable and dutiable goods but they are not maintaining any separate accounts in respect of manufacture of dutiable and exempted goods. It is stated that appellant did not mention description of goods on the sale bills and that there was huge variations between the total turnover declared by the appellant for the purpose of VAT payment and printouts taken by the Central Excise Officers for report of previous period. This difference is, explained in the statement given by Sri Vikram, a Software professional, who created the Software of print-out for the appellants. He deposed that there is technical problem in the Software in regard to generating report of print outs. Thus the figures of sales in the print outs could not be relied, for calculating the demand. The adjudicating authority has arrived at the duty demand, basing on the VAT returns, as there was no reliable records and details furnished from the appellant side. - Thus, though the adjudicating authority has used the words best judgment method for calculation of the duty demand in effect, he has placed reliance on the VAT returns and other documents available. When there was no data to arrive at the actual clearances made, the department has adopted the method best possible which may include a little guess work. Therefore, I cannot accept the argument of the learned counsel for appellant that the charges are merely based on theoretical working. - Demand confirmed - Decided against the assessee.

Summary

Issues Involved:
1. Allegation of clandestine manufacture of pastries/biscuits leading to demand raised.
2. Appellant's contention against demand of duty based on best judgment method.
3. Discrepancy in turnover declarations and reliance on VAT returns for duty calculation.
4. Appellant's failure to provide necessary documents for clearances made.
5. Application of best judgment method for duty demand calculation.
6. Comparison of relevant case laws in duty calculation methodology.

Issue 1: Allegation of Clandestine Manufacture:
The case involves aggrieved appellants facing a demand alleging clandestine manufacture of pastries/biscuits without payment of duty. The officers of Anti-Evasion, Hyderabad-II Commiserate observed the manufacturing and clearance of dutiable goods without duty payment or Central Excise registration. A show cause notice was issued demanding payment along with penalties. The original authority confirmed the demand and penalties, leading to the appeal.

Issue 2: Contention Against Duty Demand:
The main contention by the appellant was that the demand of duty based on best judgment method was unsustainable. The appellant argued lack of provision in Central Excise Law for such a demand. They highlighted their unawareness of duty payment for dutiable goods like biscuits/pastries, leading to the demand based on assumed clearances without concrete evidence.

Issue 3: Discrepancy in Turnover Declarations:
The case revealed significant variations in turnover declarations between the appellant's VAT payments and records obtained by Central Excise Officers. The adjudicating authority relied on VAT returns to quantify clearances, as no reliable records were provided by the appellant. The duty demand was based on available data and best judgment method due to lack of concrete evidence.

Issue 4: Failure to Provide Necessary Documents:
The appellant's failure to provide relevant information for clearances made hindered the duty calculation process. The officers resorted to best judgment method as per CBEC guidelines when self-assessment was deemed inadequate. The burden was on the appellant to provide necessary information for duty calculation.

Issue 5: Application of Best Judgment Method:
The officers defended the duty demand based on the best judgment method, citing deliberate evasion by the appellant. The method involved arriving at a nearly correct sales figure by utilizing available data and applying ratios for periods with no data. The demand was deemed accurate based on statutory records and available information.

Issue 6: Comparison with Relevant Case Laws:
The appellant's counsel referenced specific case laws to challenge the duty calculation methodology. However, the tribunal found these cases inapplicable as the present case relied on statutory records and VAT returns for quantifying clearances. The tribunal upheld the duty demand based on available data and rejected the appellant's contentions.

In conclusion, the tribunal dismissed the appeal, affirming the duty demand and penalties imposed, emphasizing the reliance on available data and best judgment method for duty calculation.