2017 (7) TMI 159 - AT - Central Excise

Penalty - credit was reversed before issuance of SCN - shortages of goods - Held that - Failure to reverse the credit gave direct monetary benefit to the appellant and ambiguous provision, no other conclusion can be reached except that the same was done with intention to give undue benefits. In these circumstances, penalty imposed on account of non-reversal of credit is upheld. Imposition of penalty on Directors - Held that - while investigations were on, statement of Shri Sukumar N Shah, Managing Director was recorded wherein he personally explained the entire process. It was obvious that he was aware that all the activities at the material time. In these circumstances, his involvement in the evasion of duty cannot be ignored - penalty on director is upheld. Appeal dismissed - decided against appellant.

Summary

Issues involved:
1. Reversal of Cenvat credit on missing raw materials
2. Demand of duty on finished goods not found
3. Imposition of penalty on the main appellant and the Director

Analysis:

Issue 1: Reversal of Cenvat credit on missing raw materials
The main appellant, engaged in the manufacture of plastic products, faced a show-cause notice demanding reversal of Cenvat credit due to shortages in raw materials. The appellant admitted to the shortages and reversed the credit promptly after the visit of officers. The Tribunal upheld the penalty on the appellant for failure to reverse the credit, emphasizing that the provisions for reversal of Cenvat Credit are clear and leave no room for interpretation. The failure to reverse the credit was deemed intentional to gain undue benefits, leading to the confirmation of the penalty.

Issue 2: Demand of duty on finished goods not found
Regarding the demand of duty on finished goods not accounted for, the Tribunal noted shortages in finished goods and clearances made without proper documentation. The defense that these clearances were only samples was deemed unsustainable, as even samples are required to be cleared with duty payment. The Tribunal concluded that the goods were cleared clandestinely to evade duty, upholding the demand and penalty imposed on this count.

Issue 3: Imposition of penalty on the Director
The involvement of the Director in the evasion of duty was established through recorded statements during investigations. Despite the Director's claim of not being actively involved in day-to-day activities, his knowledge and awareness of the activities were evident. The Tribunal upheld the penalty on the Director, emphasizing his role in the evasion of duty. Consequently, both appeals filed by the appellants were dismissed by the Tribunal.

In conclusion, the Tribunal upheld the penalties and demands related to the reversal of Cenvat credit, clearance of finished goods without proper documentation, and the involvement of the Director in the evasion of duty based on the evidence and admissions presented during the proceedings.