2009 (1) TMI 105 - HC - Central Excise

Tribunal setting aside the penalty by recording findings that in a case of shortage, the weighment slips were not produced by revenue and the respondent was not permitted to cross-examine the panch witness finding that there is no evidence on record to prove that the goods were cleared without payment of duty finding that SCN is barred by limitation finding arrived at by tribunal are finding of fact impugned order of the Tribunal of deleting penalty does not warrant interference

Summary

Issues:
1. Cross-examination of panch witness
2. Preparation of weighment in case of shortage of goods
3. Barred by limitation - show cause notice

Analysis:

Cross-examination of panch witness:
The case involved a manufacturing unit found with a shortage of goods during a physical stock-taking. The appellant challenged the penalty imposed, arguing that the Tribunal erred in not allowing cross-examination of the panch witness. The Tribunal noted the absence of weighment slips and inventory for the raw materials, casting doubt on the genuineness of the shortages. It was highlighted that the physical stock-taking lacked a panch witness, and the respondent's request for cross-examination was denied. The Tribunal's decision to set aside the penalty was based on the lack of evidence proving duty evasion due to the missing weighment slips and the absence of panch witnesses during the process.

Preparation of weighment in case of shortage of goods:
The Tribunal's findings emphasized the importance of weighment slips and other evidence to verify shortages and prevent clandestine removal of goods without duty payment. The absence of such documentation raised doubts about the legitimacy of the shortages. The Tribunal confirmed the duty amount for goods sent to a job-worker but overturned the penalty imposed on the respondent-unit due to insufficient evidence and procedural irregularities, including the lack of weighment slips and the absence of panch witnesses during the stock-taking process.

Barred by limitation - show cause notice:
Regarding the issue of the show cause notice being barred by limitation, the Tribunal pointed out a significant delay between the search conducted in March 2000 and the issuance of the notice in January 2004. The absence of any explanation for the substantial delay led the Tribunal to conclude that the notice was indeed barred by limitation. The appellant's argument that the delay was unjustified was rejected, and the Tribunal's decision to set aside the penalty and dismiss the appeal was upheld based on the factual aspect of the delayed notice.

In conclusion, the High Court dismissed the appeal, stating that no substantial question of law arose for consideration. The Tribunal's decision to set aside the penalty was deemed justified due to the lack of crucial evidence like weighment slips and the presence of procedural irregularities, such as the absence of panch witnesses during the stock-taking process. The delay in issuing the show cause notice without any explanation further supported the Tribunal's decision, leading to the dismissal of the appeal.