2017 (5) TMI 1291 - AT - Central Excise

Clandestine manufacture and removal - sponge iron - MS ingot - shortages and excesses in stock of finished goods and input respectively - Held that - the appellant have produced evidence before the Revenue that the recorded stock of sugar and molasses have been subsequently cleared on payment of appropriate Excise duty. So far the allegation of clandestine manufacture and removal of MS Ingots is concerned, the SCN is vague as it relies on a vague report based on vague Data, based on further presumptions and assumptions. The allegation of clandestine manufacture and removal are vague and have got no legs to stand - appeal allowed - decided in favor of appellant.

Issues Involved:
1. Confiscation of 75 MT of sponge iron.
2. Demand of excise duty on sugar, molasses, and MS Ingot found short.
3. Demand of excise duty on MS Ingots allegedly manufactured and cleared clandestinely for the extended period.
4. Imposition of penalties under various sections and rules.

Detailed Analysis:

Issue 1: Confiscation of 75 MT of Sponge Iron
The appellant, a manufacturer of sugar and molasses, faced confiscation of 75 MT of sponge iron valued at ?9 lakhs with an option to redeem on payment of fine ?2,25,000. The confiscation was based on the finding of excess sponge iron during an inspection. The appellant argued that the stock was taken by visual examination rather than actual measurement, leading to discrepancies. The Tribunal noted that the show cause notice and punchnama did not specify the method of stock verification, leading to the conclusion that the confiscation was based on assumptions and presumptions.

Issue 2: Demand of Excise Duty on Sugar, Molasses, and MS Ingot Found Short
The inspection revealed shortages in sugar (5044 quintals), molasses (484.18 quintals), and MS Ingot (10.17 MT). The appellant contended that the stock of sugar was taken by test check and not all bags were counted, leading to an erroneous calculation. Similarly, the stock of molasses was taken by the dip method, which is not accurate. The Tribunal found that the stock verification methods were not clearly documented, and the appellant provided evidence that the recorded stock was subsequently cleared on payment of appropriate excise duty. Therefore, the demand for excise duty on these shortages was not justified.

Issue 3: Demand of Excise Duty on MS Ingots Allegedly Manufactured and Cleared Clandestinely
The demand of ?3,75,20,305 was based on the alleged clandestine manufacture and clearance of MS Ingots for the period 2004-05 to 2007-08. The Revenue relied on a report by Shri R. Venugopal, which estimated the furnace capacity based on assumed dimensions. The appellant provided a counter-report by Shri D.K. Jain, who personally inspected the furnaces and calculated a lower capacity. The Tribunal found the Revenue's report to be vague and based on assumptions, while the appellant's report was more precise and based on actual measurements. Consequently, the Tribunal held that the allegation of clandestine manufacture and removal was not substantiated.

Issue 4: Imposition of Penalties
Penalties totaling ?3,82,86,278 were imposed under various sections and rules for not maintaining proper accounts and allegedly clandestine activities. Given the findings on the previous issues, the Tribunal concluded that the penalties were based on unsubstantiated allegations and assumptions. Therefore, the penalties were set aside.

Conclusion:
The Tribunal set aside the impugned order, concluding that the allegations of clandestine manufacture and removal were vague and unsubstantiated. The appellant was entitled to consequential benefits in accordance with the law. The order was dictated in open court.

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