2018 (3) TMI 240 - AT - Central Excise

Penalty u/s 11AC of CEA - clandestine removal - Held that - Tribunal in the case of Galaxy Textile Vs. Commissioner of Central Excise, Vapi 2010 (7) TMI 516 - CESTAT, AHMEDABAD observed that though the appellant had admitted shortages and have agreed to pay the duty thereon so as to avoid litigation but in the absence of any evidence to corroborate the allegations of clandestine removal, penalty is not imposable - penalty set aside - duty demand with interest upheld - appeal allowed in part.

Summary

Issues:
Imposition of penalty under Section 11 AC of the Act based on shortages detected in the appellant's factory during stock taking.

Analysis:
The judgment by Mrs. Archana Wadhwa of the Appellate Tribunal CESTAT ALLAHABAD dealt with the challenge to the imposition of a penalty of &8377; 2,55,782 on the appellant under Section 11 AC of the Act. The appellant, engaged in the manufacture of M/s Ingots, had shortages detected in their factory during a visit by officers, leading to the initiation of proceedings alleging clandestine removal and proposing the penalty. The appellant admitted the shortages and paid the duty in respect of the same. However, they contended that no penalty should be imposed as the shortages cannot be considered as clandestine removal without payment of duty.

The Tribunal referred to the case of Galaxy Textile Vs. Commissioner of Central Excise, Vapi, where it was observed that penalty cannot be imposed solely based on shortages admitted by the appellant without corroborating evidence of clandestine removal. The Tribunal noted the absence of any investigation by the Revenue to substantiate the allegations, emphasizing that findings of clandestine removal must be supported by positive and tangible evidence, not assumptions or presumptions. Citing the decision of the Hon'ble High Court of Allahabad in Commissioner of Central Excise, Kanpur Vs. Minakshi Castings, it was established that shortages of finished goods without evidence of clandestine removal do not indicate duty evasion.

In light of the above, the penalty imposed on the appellant was set aside by the Tribunal. However, the duty and interest were confirmed as not contested by the appellant. The appeal was allowed on these terms, with the judgment pronounced on 29/11/17.