2017 (5) TMI 1245 - AT - Central Excise

Clandestine removal - demand based solely on the balance sheet figure is not sustainable - Held that - As per the assessee, the assessee has produced series of correspondences before the authorities below but none has considered those correspondences and the reasons given by the appellant for variance between the balance sheet and ER-1 returns - this case needs to be remanded back to the original authority with a direction to examine the documents produced by the appellant explaining the variance between the balance sheet and ER-1 returns - appeal allowed by way of remand.

Summary

Issues:
Appeal against rejection of appeal by Commissioner (A) - Variance in excise duties - Demand confirmation - Sustainability of impugned order - Evidence consideration - Balance sheet vs. ER-1 returns reconciliation - Barred by limitation - Suppression absence - Extended period invocation - Duty payment quantification - Remand for fresh adjudication.

Analysis:
The appeal before the Appellate Tribunal CESTAT Bangalore challenged the rejection of the appellant's appeal by the Commissioner (A) regarding a variance in excise duties. The appellant, a manufacturer of excisable goods availing CENVAT credit, faced discrepancies in excise duties during an audit covering May 2005 to March 2008. A show-cause notice led to a demand confirmation of ?3,48,671 along with interest and penalty, which the appellant contested. The appellant argued that the impugned order lacked sustainability as it disregarded evidence of migration in ERP software and merger of companies causing the balance sheet vs. ER-1 returns variance. The appellant cited cases to support the contention that a demand solely based on the balance sheet figure is unsustainable and highlighted the absence of evidence proving non-payment of duty on manufactured goods.

The appellant further contended that the demand was time-barred due to no suppression on their part, referencing previous audits without raised objections. Citing the case of Commissioner of Central Excise, Bangalore vs. Pragathi Concrete Products (P) Ltd., the appellant argued against the invocation of the extended period of limitation. In response, the AR argued that the duty payable as per the balance sheet exceeded the duty paid in ER-1 returns for certain years, emphasizing the need for reconciliation between the two statutory records. The Tribunal noted the Commissioner (A)'s failure to consider the appellant's explanations and directed a remand to the original authority for examining the documents explaining the variance. The adjudicating authority was instructed to reconsider all aspects, including limitation issues, and provide a fresh reasoned order, setting aside the impugned order for further adjudication.

This detailed analysis covers the issues of appeal rejection, excise duties variance, demand confirmation, sustainability of the impugned order, evidence consideration, reconciliation between balance sheet and ER-1 returns, limitation aspects, duty payment quantification, and the remand for fresh adjudication.