2017 (6) TMI 673 - AT - Central Excise

Clandestine removal - chewing tobacco - clearance without invoices and without payment of duty - unaccounted procurement of raw tobacco - Held that - investigation has sufficiently established the various quantities of unaccounted raw tobacco procured by the appellants - With regard to 42,221 kgs of such raw tobacco, the unaccounted procurement, manufacture of chewing tobacco thereof and their clandestine clearance have been admitted by Shri Shri Abdul Salam in his statement, which was not retracted at any time - for the limited purpose of redetermining the value of unaccounted clearances of chewing tobacco for the period from October 2004 to August 2005, the matter is being remanded to the original authority. Equal penalty u/s 11AC - Held that - contumacious conduct of KPM definitely justify such equal penalty. However, such equal penalty will obviously have to be revised equal to the revised differential duty liability as may be arrived at in the denovo adjudication. Appeal allowed by way of remand.

Issues involved: Detection of clearance of chewing tobacco without invoices and duty payment, differential duty demand, penalty imposition, utilization of raw tobacco, MRP based valuation, abatement, penalty on individuals involved.

Detection of clearance of chewing tobacco without invoices and duty payment:
The issue in dispute pertains to the detection of clearance of chewing tobacco without invoices and duty payment by the appellant. The department alleged that the appellant had manufactured and cleared chewing tobacco without discharging the duty liability and had engaged in unaccounted procurement of raw tobacco. The original authority confirmed a differential duty demand along with interest liability and imposed penalties on the appellants. The Commissioner (Appeals) upheld the original authority's decision, leading to both appellants appealing to the forum.

Utilization of raw tobacco:
During the hearing, the appellant's advocate highlighted that a portion of the raw tobacco procured had not been utilized for manufacturing chewing tobacco. The advocate argued that this unutilized quantity should reduce the duty liability. The advocate also raised the issue of MRP based valuation and abatement, contending that this should be considered for calculating the duty liability.

MRP based valuation and abatement:
The advocate argued that chewing tobacco fell under the MRP net for assessment purposes with an abatement from MRP for determining the assessable value. The advocate requested the benefit of MRP with related abatement to be extended to the appellants for calculating the duty liability and penalty.

Penalty on individuals involved:
Regarding the penalty imposed on an individual associated with the appellant, the advocate contended that the individual, being the son of the main appellant, should not be penalized. However, the department's representative supported the adjudication, stating that there was no evidence to prove that the unutilized raw tobacco was not used for manufacturing chewing tobacco.

Judgment:
The tribunal found that while the unaccounted procurement and clearance of raw tobacco were established, the issue of unutilized raw tobacco did not reduce the duty liability. However, the tribunal agreed with the advocate's argument on MRP based valuation and abatement. They remanded the matter to the original authority for recalculation of the duty liability based on MRP valuation with abatement. The tribunal also upheld the equal penalty imposed on the main appellant but directed a revision based on the revised duty liability. The penalty on the individual associated with the appellant was upheld, considering his significant role in the deceptive activities. Both appeals were disposed of accordingly.

This detailed analysis covers the issues involved in the legal judgment, providing a comprehensive overview of the arguments presented, the tribunal's findings, and the final decision rendered.

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