2017 (5) TMI 176 - AT - Central Excise

Clandestine removal - parallel invoices - entries in ISI register - demand of duty with interest and penalty - Held that - the demand on account of shortage on finished goods and raw material used in manufacture of clandestine removal of goods of ₹ 67,660/- and ₹ 1,14,571/- respectively are not sustainable - As the short found goods have been cleared on the strength of parallel invoices/entries made in shipra note book and no other positive evidence has been produced by the Revenue for clearances of the finished goods found short and raw material found shortage used in manufacturing of the finished goods. As the appellant has cleared two or three times more than of the quantity entered in ISI register , therefore, the entries made in ISI register cannot be the basis of the demand of duty on account clandestine clearance of the goods. Penalty - Held that - As the appellant has paid an amount of ₹ 4 lacs during the course of investigation itself. In that circumstances, the penalty is reduced to 25% of the duty confirmed on the main appellant which shall be payable by the appellant within 30 days of the receipt of this order failing which the appellant shall be liable to pay 100% of the duty confirmed as penalty. Penalties on directors - Held that - without the knowledge of the directors, the goods cannot be cleared clandestinely, therefore, the penalties on both the directors are sustainable. Appeal allowed - decided partly in favor of appellant.

Issues:
1. Duty confirmed against the main appellant for clandestine removal of goods.
2. Dispute regarding shortage of finished goods and raw materials.
3. Validity of demands based on entries in ISI register.
4. Benefit of cum duty price on confirmed demands.
5. Reduction of penalty amount.
6. Imposition of penalties on directors.

Analysis:
1. The appellant challenged the confirmed duty, interest, and penalties imposed for clandestine removal of goods following a search at their premises. The physical stocktaking revealed shortages in finished goods and raw materials, leading to show cause notices demanding duty, interest, and penalties. The appellants admitted certain demands based on parallel invoices and entries in a note book but disputed others related to shortages. The case involved allegations of goods being cleared clandestinely through parallel invoices and entries in registers during specific periods.

2. The appellant argued that shortages in finished goods were covered by admitted demands and disputed the allegations based on entries in the ISI register. They contended that the entries were for quality testing, not production records, and that the department misinterpreted them. The appellant also sought the benefit of cum duty price on confirmed demands and requested a reduction in penalties due to prior payments made.

3. The Revenue contended that the appellant's admissions of clandestine clearances were sufficient, supported by recovered documents, without any contradictory evidence. However, the Tribunal found the demands unsustainable due to lack of positive evidence supporting the alleged clandestine removals. Entries in the ISI register were deemed insufficient to establish duty liability, especially considering the appellant had cleared more goods than recorded.

4. The Tribunal ruled in favor of the appellant, reducing demands confirmed based on parallel invoices and note book entries to cum duty price. Additionally, penalties were decreased to 25% of the recalculated duty for the main appellant, with penalties on directors reduced to a nominal amount due to lack of evidence implicating them in the clandestine activities.

5. Ultimately, the Tribunal disposed of the appeals by confirming demands based on specific entries while granting cum duty benefits and reducing penalties for both the main appellant and directors. The judgment highlighted the importance of substantial evidence in establishing duty liabilities and penalties, ensuring fairness in the adjudication process.

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