2018 (2) TMI 1401 - AT - Central Excise

Principles of natural justice - The main grievance voiced by the appellant before us as well as before the Tribunal in the earlier round of litigation is that copies of all the RUDs have not been shared by the Revenue with them - Held that - We have perused of the long list of RUDs vis-a-vis, the documents which have already been made available to the appellant and we are convinced that all the main documents leading to the demand and its computation has already been shared with the appellant - we are of the view that they have been given a fair opportunity to advance the case against them, even in the absence of copies of some of annexures of the RUDs. Clandestine removal - shortage of raw material and finished goods - The stock was ascertained making use of the dip reading method. The appellants grievance is that this is not an accurate method of ascertaining stock - Held that - the method has been adopted by the departmental officers only after obtaining the concurrence of the appellant s representative who was present during the panchnama proceedings - the appellant is liable to pay the duty on the finished products found short as well as reverse the modvat credit on the inputs which were found in short - demand upheld. Clandestine removal - finished products - it has been alleged that the appellant has removed 3996.286 MT of formaldehyde during the period under consideration and duty demand on the same has been confirmed - Held that - the appellant, by failing to account the full quantity of raw material received by them has indulged in suppression of facts. Analysis of some of the documents relating to finished product clearly evidences that appellant has manufactured and cleared significantly more quantity of formaldehyde then what has been accounted - the preponderance of probability clearly indicates clandestine clearance in the present case. However, the duty demand cannot be sustained on 3996.86 MT of formaldehyde as has been done by the adjudicating authority. It will be reasonable to restrict the demand to the quantity of 1378.595 MT of formaldehyde manufactured out of the unaccounted methanol which has been consumed to the extent of 453.302 MT - In addition, the appellant will also be liable for payment of duty on the shortage of raw material as well as finished products. Matter is remanded to the Adjudicating Authority to requantify the demand and redecide the penalties on the basis of the revised computation.

Summary

Issues:
1. Cenvat credit availed on raw materials.
2. Shortage of finished goods and raw material.
3. Allegations of clandestine clearance.
4. Accuracy of stock taking method.
5. Principles of natural justice.
6. Demand of duty and penalty.

Analysis:

Cenvat Credit Availed on Raw Materials:
The appellant, engaged in manufacturing Formaldehyde, availed cenvat credit on duty paid for inputs, including methanol. Central Excise Officers found discrepancies during a visit, leading to a demand of duty on the raw material and finished products, along with allegations of clandestine clearance.

Shortage of Finished Goods and Raw Material:
Shortages of finished goods and raw material were identified during a stock verification. The appellant challenged the accuracy of the stock-taking method, but the Tribunal upheld the demand for duty on the shortages, considering the method's acceptance by the appellant's representative.

Allegations of Clandestine Clearance:
The investigation alleged clandestine clearance of Formaldehyde based on unaccounted methanol consumption. However, the appellant argued that the production capacity did not support the alleged quantity of clandestine removal. The Tribunal found the demand inflated and unsustainable, limiting it to a reasonable quantity based on unaccounted methanol consumption.

Accuracy of Stock Taking Method:
The appellant disputed the accuracy of the dip reading method used for stock taking. Despite the challenge, the Tribunal disregarded this argument, as the method was accepted by the appellant's representative during the proceedings.

Principles of Natural Justice:
The appellant contended a violation of natural justice due to incomplete document sharing. The Tribunal reviewed the documents shared and concluded that the appellant had a fair opportunity to present their case, even without some annexures, upholding the order's validity.

Demand of Duty and Penalty:
After detailed scrutiny of documents and statements, the Tribunal found evidence of suppression and clandestine clearance by the appellant. However, the demand for duty and penalty was revised, limiting it to a specific quantity of Formaldehyde and remanding the case for re-quantification and penalty reassessment.

In conclusion, the Tribunal modified the impugned order, sustaining it partially and remanding the case for further proceedings to re-quantify the demand and penalties based on the revised computation.