2017 (12) TMI 539 - AT - Central Excise

Clandestine Removal - whether on the date of inspection that is 23/01/2012, whether the appellant had stocked finished goods clandestinely for clearing without payment of duty? - Held that - the whole SCN is presumptive. In spite of categorical assertion by the Director of the company in the statement recorded during investigation under section 14 of the act, wherein he categorically stated that the goods detained and seized are work-in-progress and not finished goods, Revenue have failed to test the goods - no case of clandestine stocking or removing of any goods is made out against the appellant. As such, the order of confiscation and penalty is bad and fit to be set aside - appeal allowed - decided in favor of appellant.

Issues:
1. Whether the appellant clandestinely stocked finished goods for clearing without payment of duty on the date of inspection.
2. Whether the goods seized were work-in-progress or finished goods.
3. Validity of the confiscation and penalty imposed by the Assistant Commissioner.
4. Validity of the differential duty demand and penalty imposed under section 11 AC of the Act.

Analysis:

1. The primary issue in this appeal was whether the appellant had clandestinely stocked finished goods for clearance without duty payment during the inspection on 23/01/2012. The appellant, a manufacturer of Ferro manganese, claimed that the excess stock found was work-in-progress, not finished goods. The Director stated that goods were considered finished only after meeting specific criteria and testing. The Revenue alleged that the goods were manufactured surreptitiously. The Tribunal found that the Revenue failed to test the goods despite the Director's statement, leading to a presumptive show cause notice. Consequently, the order of confiscation and penalty was set aside as no clandestine stocking was proven.

2. The second issue revolved around whether the seized goods were work-in-progress or finished goods. The Director's statement clarified that the goods were not final products until specific criteria were met. The Revenue rejected this assertion without conducting tests. The Tribunal held that the goods were indeed work-in-progress based on the Director's statement and lack of concrete evidence from the Revenue. As a result, the confiscation and penalty were deemed unjustified and set aside.

3. Another issue was the validity of the confiscation and penalty imposed by the Assistant Commissioner. The appellant argued that the Revenue's case was based on presumptions and assumptions, lacking concrete evidence. The Tribunal agreed, noting that the show cause notice was presumptive and failed to consider the Director's statement. The order of confiscation and penalty was deemed unfit and set aside due to lack of substantiated claims by the Revenue.

4. The final issue concerned the demand for differential duty and penalty imposed under section 11 AC of the Act. The appellant had accepted the duty shortfall and paid it with interest before the show cause notice was issued. The Tribunal found that the notice on this count was invalid, as the appellant had rectified the duty payment discrepancy voluntarily. Consequently, the show cause notice for the differential duty demand and penalty was deemed untenable and set aside. The appellant's appeal was allowed, and they were entitled to consequential benefits as per the law.

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