2016 (11) TMI 354 - HC - Central Excise

Clandestine removal of molasses for open market sale - Held that - When appellant contended that shortage might be due to some fault of employee, the factum that it was not within his knowledge, consent or approval was also to be proved by appellant. Even otherwise, if shortage was due to some negligence on the part of employee, the employee is also an agent of appellant, for any act committed by employee, appellant, being principal is responsible. Hence in present case, onus to prove that shortage was not on account of any objectionable conduct on the part of appellant, was upon appellant which it fails to prove. Tribunal, therefore, was justified in taking a view otherwise and against appellant. Question is answered against appellant. So far as question 1 is concerned, since shortage in physical verification, as already said and evident from record that same was not disputed by appellant, any verification by other authority at some other point of time, would not help appellant and, therefore, question 1 is also answered against appellant.

Summary

Issues:
1. Whether the Tribunal erred in approving the dip method of verifying stock of molasses and disregarding significant differences found in physical verification?
2. Whether the Tribunal was justified in allowing condonation for shortage of stock stored in Tank No.2 without evidence of clandestine removal for open market sale?

Analysis:

Issue 1:
The appellant argued that there was no evidence of clandestine removal of molasses for open market sale as no significant shortage was found. However, the Central Excise Officer discovered a substantial shortage in the quantity of molasses compared to the dip reading method and records maintained by the appellant. The appellant acknowledged the shortage but attributed it to the fault of some employees, failing to provide any evidence to substantiate this claim. The court emphasized that when a party admits a fact but provides an explanation, the onus is on that party to prove the explanation. Since the appellant failed to discharge this burden, the authorities were justified in drawing an adverse inference against the appellant.

Issue 2:
The appellant contended that a shortage does not always imply clandestine removal and could have various reasons. However, the court noted that the appellant, as the possessor of the material and in control of the premises, is obligated to explain any shortage. Even if the shortage resulted from employee negligence, the employee acts as an agent of the appellant, making the appellant accountable. As the appellant failed to prove that the shortage was not due to its objectionable conduct, the Tribunal's decision was deemed appropriate. Therefore, the onus was on the appellant to demonstrate that the shortage was not a result of its actions, which it failed to establish.

In conclusion, the court found no error in the impugned order, dismissing the appeal for lacking merit. The judgment upheld the Tribunal's decision regarding the verification method of stock and the condonation for shortage, ruling against the appellant on both issues.