2016 (10) TMI 67 - AT - Central Excise

Clandestine removal of goods - shortage of finished goods of 69.93 MT of MS ingots - power consumption for one MT of MS ingots varies from 990 units to 3703 units per MT - manufacturing of MS ingots on the basis of consumption of electricity - Demand and imposition of penalties - Held that - Clandestine removal of goods - Demand alongwith interest and penalties - excess electricity consumption - on the basis of excess electricity consumption, the appellant is manufacturing excess quantity of finished goods which have been removed clandestinely on the basis of Dr. N.K. Batra, Professor of IIT, Kanpur - Held that - the charge against the appellant has been dropped on the ground that on the basis of report of DR. N.K. Batra, Professor IIT, Kanpur is not acceptable as held by Hon ble Apex Court in the case of R A Casting 2011 (1) TMI 1302 - Supreme Court of India . Such charge of clandestine manufacture of goods and clandestine removal of the goods has already been held by the ld. Commissioner as not sustainable in the facts of this case. Therefore, demand is also not sustainable as the same has been confirmed on account of clandestine manufacture and clandestine removal of goods. Further, we find that in the Show Cause Notice although it is discussed that certain katcha slips were found during the course of investigation for purchase of scrap on the basis of these slips, no demand of duty is proposed. As there is no duty demand in the Show Cause Notice, therefore, we hold that demand is not required to be confirmed against the appellant, therefore same is set aside. As demand has been set aside, consequently the demand of interest and imposition of penalty on this count is also set aside. Clandestine removal of goods - finished goods of 69.93 MT of MS ingots were found short - Imposition of penalties - conclusion was drawn by the department that as they have paid the duty therefore these goods have been removed clandestinely - Held that - there are charges on the appellants that goods have been removed clandestinely by the appellants but the charges of clandestine removal have been dropped and therefore, in these circumstances, it cannot be held that goods have been cleared clandestinely. Although the appellants has paid the duty that might be to settle the issue at that stage, but from the records it is not coming out that the charge of clandestine removal has been proved with any supportive evidence except the goods were found short during the course of investigation. Therefore, when the appellant has paid the duty but there is no demand of interest proposed, in these circumstances we hold that charge of clandestine removal stands unapproved. Therefore, question of imposing penalty does not arise on the appellant. As the appellant is not contesting demand of duty therefore appellant cannot claim refund thereof in consequence of this order. In the result, impugned order qua demand of duty along with interest and imposition of penalty on the main appellant and penalties on co-appellant is set aside. - Decided in favour of appellant

Summary

Issues:
1. Allegation of clandestine manufacture and removal of goods.
2. Demand of duty based on electricity consumption.
3. Shortage of finished goods and imposition of penalties.

Analysis:

Issue 1: Allegation of Clandestine Manufacture and Removal of Goods
The case involved an appeal against an Order-in-Original alleging clandestine manufacture and removal of goods, specifically MS ingots, by the appellant company. The investigation revealed discrepancies in finished goods and purchase of scrap, leading to demands of duty and penalties. The adjudicating authority dropped the demand based on electricity consumption, citing lack of authentication in the report. The appellant contested the charges, arguing that without concrete evidence of clandestine removal, penalties should not be imposed. The Tribunal found that the charges of clandestine removal were not substantiated, as no conclusive evidence supported the allegation. Consequently, the demand of duty and penalties related to clandestine removal were set aside.

Issue 2: Demand of Duty Based on Electricity Consumption
The Revenue appealed against the dropping of a demand of ?2.13 Crores, calculated based on excess electricity consumption for manufacturing MS ingots. The Revenue argued that evidence, such as loose slips showing scrap purchase, supported the claim of clandestine removal. However, the Tribunal held that the reliance on electricity consumption for assessing duty was not sustainable, especially since the authenticity of the report was questioned. The absence of a specific demand in the Show Cause Notice regarding scrap purchase further weakened the Revenue's case. Consequently, the demand based on electricity consumption was not upheld.

Issue 3: Shortage of Finished Goods and Penalties
Regarding the shortage of finished goods and the penalties imposed, the Tribunal noted that while the appellant had paid duty on the short goods, it did not necessarily prove clandestine removal. The absence of a demand for interest on the short goods indicated a lack of conclusive evidence for clandestine removal. As the appellant did not contest the duty demand related to the shortage, penalties were deemed unnecessary. The Tribunal set aside the demand, interest, and penalties associated with the shortage of finished goods.

In conclusion, the Tribunal allowed the appeals of the appellant company and directors, dismissing the Revenue's appeals. The decision was based on the lack of concrete evidence supporting the allegations of clandestine manufacture and removal, as well as the questionable basis for calculating duty. The appellant was relieved of the duty demands and penalties, emphasizing the importance of substantiated claims in such cases.