2018 (3) TMI 241 - AT - Central Excise

Clandestine removal - excess of stock - M.S. Ingots - M.S. Scrap/ Waste - Held that - the effect of the entire evidence on record establishes beyond doubt that the goods loaded in the truck were cleared by M/s Premier Ispat Ltd., without payment of any duty of excise and without issuing the invoices. There is no explanation either by M/s Premier Ispat Ltd. or M/s Jai Maa Sharda Enterprises as to from where the said goods were purchased or came into existence - As regards the confiscation of the same, I agree with the Iower authorities that inasmuch as the seized goods were non-duty paid their confiscation has to be upheld. However, the duty involved was to the extent of ₹ 1,15,817/-, the redemption fine from ₹ 2,79,440/- to ₹ 1,00,000/-. Clandestine removal - shortage of stock - Held that - It is settled that the findings of clandestine removal are required to be based on the positive and tangible evidence and cannot be upheld on the basis of assumption and presumption - Reliance in this regard is made to the decision of the Hon ble High Court of Allahabad in the case of Commissioner of Central Excise, Kanpur Vs. Minakshi Castings 2011 (8) TMI 896 - ALLAHABAD HIGH COURT laying down that the shortages of finished goods without any evidence of clandestine removal, cannot lead to inference of evasion of duty - demand set aside. Penalty on Director - Held that - Commissioner(Appeals) has given a finding that no specific rule stands attributed to the Director and the matter has not been investigated so as to adduce any evidence against the said assessee - there is no evidence against Shri Amit Jain, the penalty imposed upon him should have been set aside in toto. Appeal allowed in part.

Summary

Issues: Confiscation of goods, confirmation of duty on loaded goods, confirmation of duty on shortages, imposition of penalties, reduction of penalties, setting aside of penalties.

The judgment by the Appellate Tribunal CESTAT ALLAHABAD involved multiple issues arising from the confiscation of goods and imposition of duties and penalties. The case revolved around the confiscation of 36.080 MT of Bars found loaded in trucks outside the factory premises of the appellant, with an option for redemption on payment of a fine. Additionally, duty amounts were confirmed for the loaded goods and shortages detected in the appellant's factory, leading to the imposition of penalties under relevant excise rules. The penalties were imposed not only on the manufacturing unit but also on the Director of the unit. The judgment addressed the confirmation of duty on the loaded goods, the confirmation of duty on shortages, and the imposition and subsequent reduction of penalties.

In analyzing the issue of confirmation of duty on the loaded goods, the Tribunal found that the goods were not covered by any Central Excise Invoices issued by the manufacturer, indicating a clear attempt to evade duty payment. The evidence, including statements from truck drivers and the Director, pointed towards the goods being cleared without payment of excise duty. The Tribunal upheld the demand for duty on the loaded goods, along with penalties equivalent to the evaded duty, in accordance with Section 11 AC of the Act. The confiscation of the goods was also upheld due to non-payment of duty, although the redemption fine was reduced considering the duty amount involved.

Regarding the confirmation of duty on shortages detected in the factory, the Tribunal noted that there was no concrete evidence linking the shortages to clandestine removal or evasion of duty. Citing a previous decision, the Tribunal emphasized the need for tangible evidence to prove clandestine removal, which was lacking in this case. As a result, the confirmation of duty on shortages and the imposition of penalties related to shortages were set aside due to insufficient evidence.

The judgment also addressed the penalties imposed, particularly on the Director of the manufacturing unit. While the Commissioner(Appeals) had reduced the penalty amount, the Tribunal further scrutinized the lack of specific rules attributed to the Director and the absence of substantial evidence against him. Consequently, the Tribunal set aside the penalty imposed on the Director entirely, emphasizing the importance of evidence in penalty determinations.

In conclusion, the Tribunal partly rejected and partly allowed the appeal of the manufacturing unit, while fully allowing the appeal of the Director regarding the penalties imposed. The judgment provided a detailed analysis of the issues surrounding duty confirmation, penalties, and confiscation of goods, ensuring a fair and reasoned decision based on the evidence presented during the proceedings.