2018 (3) TMI 1377 - AT - Central Excise

Clandestine removal - onus to prove - natural justice - Held that - the appellant has stated that the raw material procured was substandard in quality and therefore, in comparison to the subsequent period of 2007-08, the generation of scrap during the year 2006-07 was more. However, the submissions made by the appellant in those statements were not considered by the authorities below - the Department has not produced any other tangible evidence to show that the higher percentage of scrap of 11.46% were removed by the appellant in clandestine manner. Since, the onus lies with the Department to prove clandestine activities of the appellant has not been satisfactorily discharged in this case - demand set aside - appeal allowed - decided in favor of assessee.

Summary

Issues:
- Central Excise Duty demand based on excess scrap generation during specific years
- Allegation of clandestine removal of goods without payment of duty
- Evidence presented by the Department to support the duty demand
- Appellant's defense based on raw material quality and labor skill affecting scrap generation
- Consideration of appellant's statements and evidence in the decision-making process

Central Excise Duty Demand:
The case involved an appeal against an order passed by the Commissioner (Appeals) regarding the Central Excise Duty demand on excess scrap generation by the appellant. The Department observed discrepancies in the scrap generated by the appellant during the years 2006-07 and 2007-08. The appellant was accused of removing scrap clandestinely without paying the required Central Excise duty. The initial order imposed a duty demand, interest, and penalties, which was upheld by the Commissioner (Appeals).

Allegation of Clandestine Removal:
The Department alleged that the excess scrap generated during 2006-07 was removed clandestinely by the appellant without paying the Central Excise duty. The appellant defended by stating that the higher scrap percentage was due to reasons like raw material quality and labor skill. The Department argued that the appellant's acceptance of 18 to 20% scrap generation did not justify the excess scrap during the specific period in question.

Evidence Presented by the Department:
The Department relied on the statements of the Director of the appellant company, where it was mentioned that the raw material quality was substandard, leading to higher scrap generation in 2006-07. However, the authorities did not consider these submissions. The Department failed to provide concrete evidence beyond comparing scrap figures from the subsequent year to prove clandestine removal of goods by the appellant.

Appellant's Defense and Decision:
The appellant's defense highlighted the impact of raw material quality and labor skill on scrap generation, challenging the Department's duty demand. The Tribunal found that the Department did not satisfactorily discharge the onus of proving the appellant's clandestine activities. Considering the lack of substantial evidence and failure to consider the appellant's statements, the Tribunal set aside the impugned order and allowed the appeal in favor of the appellant.

This detailed analysis of the judgment highlights the key issues, arguments presented by both parties, evidence considered, and the ultimate decision by the Tribunal in favor of the appellant.