2017 (2) TMI 92 - AT - Central Excise

Clandestine removal - stable bleaching powder - appellant s claim that because sole selling agent recorded 77,300 kgs., in his record that shall not ipsofacto make the appellant liable to excise duty - Held that - learned adjudicating authority has made his finding not on the sole consideration of entry available in the books of account of the sole selling agent but he has established the demand in relation to 77,300 kgs. of the goods when he found that there was drawal of cash from Catholic Syrian Bank by the buyer to make payment to the appellant herein on account of unaccounted sale of above goods which remained unrebutted - Added to this, circumstantial evidence show that the appellant has not dealt with goods with any other buyer. Therefore the allegation cannot be said to have been made on vaccume - demand of duty confirmed. Valuation of waste - appellant claim that merely because this figure appeared in the balance sheet, without proving clandestine removal, department cannot make allegation of such removal for levy of duty - Held that - Appellant did not rebut generation of 83% finished goods from the input used. It was all along been disclosing that there was generation of sludge in the course of manufacture. But when physical verification was conducted, there was no sludge found in the premises of the plant. Therefore such huge value of waste which is valued by appellant shall not go unaccounted, if that has economic value. Basic common sense leads to hold that bleaching powder was sold in the guise of waste and there was clandestine removal of the same causing detriment to the interest of Revenue which resulted in demand of duty of ₹ 3,52,809/- - demand of duty confirmed. Appeal dismissed - decided against appellant.

Summary

Issues: Allegation of clandestine removal of stable bleaching powder and value of waste goods.

Issue 1: Allegation of clandestine removal of stable bleaching powder
The judgment addresses two allegations made in the Show Cause Notice (SCN): first, the clandestine removal of 77,300 kgs. of stable bleaching powder by the appellant's sole selling agent, involving a duty of ?1,17,352. The appellant's defense was that the agent's record does not automatically make them liable for excise duty, and there was no evidence of clandestine removal. The adjudicating authority found evidence of cash withdrawal by the buyer to pay the appellant for unaccounted sales, along with circumstantial evidence supporting the allegation. The duty of ?1,17,352 was confirmed based on these findings.

Issue 2: Allegation of value of waste goods
The second allegation pertained to the value of waste goods disclosed in the appellant's balance sheet for the financial year 1998-99, amounting to ?22,05,055. The Revenue alleged that this value represented goods cleared by the appellant without accounting for them. Upon examination, it was discovered that the waste bleaching powder was being sold by the appellant, disguised as waste, with 83% recovery of inputs as finished goods. Physical verification revealed discrepancies, as no sludge was found as claimed by the appellant. The adjudicating authority confirmed the duty of ?3,52,809 on the appellant for the clandestine removal of bleaching powder sold as waste.

Judgment Summary:
The judgment confirmed the duty liabilities on the appellant for both allegations of clandestine removal of stable bleaching powder and the sale of waste goods. The appellant's arguments were refuted based on evidence and circumstantial findings. The penalty on the appellant was upheld, considering their role in causing detriment to the Revenue's interest. Another appellant involved in breaching the law was also penalized for their involvement in the clearance of bleaching powder. Both appeals were dismissed, affirming the duty liabilities and penalties imposed.