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2018 (3) TMI 182 - AT - Central ExciseClandestine removal - shortage of stock - Held that - It is clearly well settled that allegation of clandestine removal of finished goods cannot be sustained only on the basis of mere shortage - In the case of Continental Cement Company vs. Union of India 2014 (9) TMI 243 - ALLAHABAD HIGH COURT the Hon ble Allahabad High Court has held that clandestine removal is a serious charge which is required to be proved by Revenue by tangible and sufficient evidence. In the case of the appellant, the demand of Central Excise duty cannot be upheld, since the allegation of clandestine removal has been made only on the basis of alleged shortages noticed during stock verification. Appeal allowed - decided in favor of appellant.
Issues Involved:
1. Alleged shortage of TMT bars and clandestine clearance without payment of duty. 2. Stock verification discrepancies and alleged clandestine clearances of scrap. 3. Adequacy of corroborative evidence to support allegations of clandestine removal. 4. Explanation of shortages due to burning loss and its acceptance by the authorities. Detailed Analysis: Issue 1: Alleged shortage of TMT bars and clandestine clearance without payment of duty - The appellant was accused of a shortage of 9076.766 MT of "Buland" brand TMT bars, allegedly cleared without paying duty, resulting in a demand of ?4,36,13,406/-. The initial stock-taking on 05.06.2012 recorded a shortage of 1055.575 MT, which the appellant paid duty for. However, the appellant argued that the conclusion of a larger shortage was contrary to the initial panchnama and based on estimates rather than actual weighment. The tribunal found discrepancies in the figures used by the department and questioned the basis for the alleged shortage. Issue 2: Stock verification discrepancies and alleged clandestine clearances of scrap - A second investigation on 20.03.2013 found shortages involving a duty of ?47,47,339/-. Additionally, a letter pad indicated unaccounted scrap clearances amounting to 170.930 MT with a duty liability of ?2,90,398/-. The total demand from this investigation was ?50,37,737/-. The appellant contended that these shortages were due to high burning losses, which were not adequately considered by the department. Issue 3: Adequacy of corroborative evidence to support allegations of clandestine removal - The tribunal emphasized that mere shortages detected during stock verification could not substantiate allegations of clandestine removal without corroborative evidence. The department failed to investigate other factors such as power consumption, procurement of raw materials, and identification of buyers and transporters. Citing precedents from the Punjab & Haryana High Court and the Allahabad High Court, the tribunal reiterated that allegations of clandestine removal require tangible and sufficient evidence beyond mere presumptions. Issue 4: Explanation of shortages due to burning loss and its acceptance by the authorities - The appellant explained the shortages as accumulated burning losses, which the Director stated could range from 15% to 20% for M.S. Ingot and 3% to 5% for TMT bars. The tribunal noted that this explanation was not thoroughly investigated or discussed by the adjudicating authority. The absence of further investigation into the Director's claims weakened the department's case. Conclusion: - The tribunal concluded that the demands for Central Excise duty could not be upheld due to the lack of corroborative evidence supporting the allegations of clandestine removal. The tribunal set aside the impugned order and allowed the appeals, emphasizing the necessity of substantial evidence to prove such serious charges.
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