2018 (1) TMI 963 - AT - Central Excise

Clandestine removal - shortages and excesses of stock - the Revenue s entire case is based upon the shortages and excess, detected at the time of visit of the Officers - Held that - It is well settled law that shortages detected at the time of stock taking cannot lead to conclusion of clandestine removal, in the absence of any corroborative evidence to that effect - apart from the alleged shortages, which are also being contested by the appellant as not being factual shortages, there is no other evidence on record to reflect upon the clandestine activities of the appellant. The Appellate Authority, having himself observed that there is no evidence to establish clandestine removal on the part of the appellant, should have set aside the demand, confiscation of the goods and penalties imposed upon the appellant. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Confirmation of demand of duty and imposition of penalty based on shortages and excess found during stock verification.
2. Applicability of clandestine removal in absence of corroborative evidence.
3. Contradictory findings by Commissioner (Appeals) regarding clandestine activities.

Analysis:
1. The appellant, engaged in manufacturing M. S. Ingots for M. S. Girders, faced proceedings due to excess ingots and shortages of girders found during a physical stock verification by Central Excise Officers. A demand of duty amounting to &8377; 2,25,630/- was confirmed, along with penalties and an option to redeem excess ingots on payment of Redemption Fine. Penalty was imposed under Rule 25 of Central Excise Rules, 2002 read with Section 11AC of the Central Excise Act, 1944. The Commissioner (Appeals) upheld the order with minor reductions in fines and penalties, leading to the present appeal.

2. The Tribunal noted that the Revenue's case relied solely on shortages and excess detected during the visit, without corroborative evidence of clandestine removal. Citing legal precedent, the Tribunal emphasized that shortages alone do not prove clandestine activities without additional proof. Referring to a decision by the Hon'ble Allahabad High Court, it was highlighted that mere shortages during stock taking do not establish clandestine removal without supporting evidence. In this case, besides contested shortages, no other evidence indicated clandestine activities by the appellant.

3. The Tribunal critiqued the Commissioner (Appeals) for contradictory findings. While acknowledging the lack of evidence for clandestine removal or intent to evade duty, the Commissioner upheld the demand and confiscation of goods. The Tribunal found this inconsistency troubling and held that in the absence of proof of clandestine activities, the demand, confiscation, and penalties should have been set aside. Consequently, the Tribunal set aside the impugned order, allowing the appeal with consequential relief to the appellant.

This detailed analysis of the judgment highlights the issues of duty demand, clandestine removal allegations, and contradictory findings by the Commissioner (Appeals), ultimately resulting in the Tribunal setting aside the order in favor of the appellant.