2017 (3) TMI 775 - AT - Central Excise

CENVAT credit - Shortage in the stock of inputs - Held that - the representative of the appellant had accepted to such shortage and later also the Director agreed to the said shortage and discharged duty on the same. At no stage of the proceeding, the correctness of the shortages arrived at during the course of panchnama on 10.7.2007 has been disputed by the appellant. Therefore, the plea now raised by the appellant to recalculate the shortage on the basis of the ratio of book stock as on 10.7.2007 in my opinion is not acceptable - Cenvat Credit of Rs. ₹ 3,38,365/- confirmed on the shortage in the stock of Inputs is upheld. As far as the credit of ₹ 17,88,402 is concerned, the same has been demanded on the ground that there has been mis-match in the generation of waste; the excess quantity of wastage was shown to have been generated in the manufacture of their own goods with an objective to cover up the excess inputs used in the manufacture of job work goods - the said issue is no more res-integra being covered by the judgments referred by the Ld Advocate in the cases of Sterlite Industries (I) Ltd, 2004 (12) TMI 108 - CESTAT, MUMBAI - the demand of ₹ 17,88,402/- confirmed by the lower authorities below is liable to set aside. Both the authorities below while confirming the Cenvat Credit on shortage of Inputs though imposed equivalent penalty u/r 15(2) of CCR,2004 read with Sec. 11AC of CEA,1944 but not extended the benefit of discharging 25% of the penalty on fulfilment condition laid down under the relevant provisions, hence the appellant is entitled to he said benefit subject to fulfilment of the conditions. Penalty on employee - Held that - there is no justification for imposition of penalty against the employee on mere shortage in the stock of Inputs which has been not accounted for at the time of the visit of factory and there is no allegation of its removal of such inputs without payment of duty - penalty set aside. Appeal disposed off - decided partly in favor of assessee.

Summary

Issues:
1. Shortage of stock of inputs leading to wrong availment of Cenvat Credit.
2. Alleged mis-match in the generation of waste and utilization of inputs in the manufacture of job work goods.
3. Imposition of penalty under Rule 15(2) of CCR,2004 and Sec. 11AC of CEA,1944.
4. Penalty imposed on the employee for shortage in the stock of inputs.

Analysis:
1. The appeals were filed against the order passed by the Commissioner of Central Excise, Customs and Service Tax regarding the shortage of stock of inputs leading to the wrong availment of Cenvat Credit. The appellant argued that the shortage was wrongly calculated, and the difference in quantity should not all be considered as cenvatable inputs. The appellant contended that the shortage of cenvatable input should be lower, resulting in a reduced credit amount. The tribunal upheld the confirmation of the Cenvat Credit on the shortage of stock of inputs, as the appellant had accepted the shortage during the proceedings.

2. Regarding the alleged mis-match in the generation of waste and utilization of inputs in the manufacture of job work goods, the tribunal found that the demand for duty on the excess inputs used in processing job work goods was not valid. The tribunal referred to various judgments supporting the appellant's position and set aside the demand for duty on the excess inputs. The tribunal highlighted that there was no allegation that the inputs were cleared in excess of wastage and needed to be reversed.

3. The tribunal noted that while the penalty was imposed under Rule 15(2) of CCR,2004 and Sec. 11AC of CEA,1944, the benefit of discharging 25% of the penalty was not extended to the appellant. Citing a judgment of the High Court of Gujarat, the tribunal ruled that the appellant was entitled to the benefit subject to fulfilling the conditions.

4. In terms of the penalty imposed on the employee for the shortage in the stock of inputs, the tribunal found no justification for the penalty as there was no evidence of removal of inputs without payment of duty. Consequently, the penalty on the employee was set aside. The tribunal partially allowed one appeal and fully allowed the other, providing relief to the appellant on various grounds.