2018 (6) TMI 118 - AT - Central Excise

Clandestine manufacture and removal - Non payment of duty - shortage of raw materials and finished goods - demand also on the basis of electricity consumption - Held that - There was shortage of raw materials and finished goods during the course of investigation. No physical verification of stock has been produced by the Revenue in the form of weightment slips or weighment chart and how weighment was done during the short span of time in a single day for both the units. In that circumstance, the allegation of shortage of raw materials and finished goods against the assessee M/s. M/s.BSRML and M/s. BSPL is not sustainable - demand on this count set aside. Demand on the basis of electricity consumed during the impugned period - Held that - On perusal of comparative figures of production and electricity consumption per MT, it reveals that there was no abnormal consumption of electricity during the impugned period, the average consumption of electricity is more or less is same. Therefore, no demand is sustainable for the period March, 2005 to February, 2006 and further March, 2007 to June, 2007 - Moreover, the Revenue has not come forward with any corroborative evidence how raw material was procured and how the goods were transported. In that circumstance, the demand against the assessee sought to be confirmed on the basis of assumptions and presumptions - As no corroborative evidence brought on record, the demand against M/s.BSRML is not sustainable and is set aside. Demand raised against M/s. BSPL on account of shortage of inputs and finished goods - Held that - Stock verification was done by eye estimation. Neither any physical verification carried out nor weighment slips nor weightment chart were prepared to arrive at actual shortage. In that circumstance, the demand raised on account of shortage of raw material and finished by eye estimation is not sustainable. Penalty on Shri Amarjeet Singh Bedi, Director - Held that - As no demand raised against the main assessee M/s.BSRML and M/s.BSPL on account of shortage or clandestine removal of goods, no penalty is imposable on Shri Amarjeet Singh Bedi, Director. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Appeal against demand of duty and penalties imposed, appeal against dropping demand for certain periods, assessment of clandestine removal of goods, shortage of raw materials and finished goods, electricity consumption analysis, compounded levy scheme assessment, imposition of penalty on the Director.

Analysis:
1. Demand of Duty and Penalties: The case involved a visit by DGCEI officers to various steel mills, leading to allegations of clandestine removal of goods. A show cause notice was issued, demands were confirmed against the steel mills for shortage of raw materials and finished goods, and penalties were imposed. The mills appealed against the demands and penalties, while the Revenue appealed against dropping demands for certain periods.

2. Arguments by Appellant: The appellant argued that no duty was demanded from one of the mills as ingots were allegedly clandestinely cleared without payment. They highlighted past production capacities, electricity consumption patterns, and lack of physical verification to support their case. They emphasized the absence of weighment slips or corroborative evidence for clandestine activities.

3. Electricity Consumption Analysis: Detailed electricity consumption data was presented for the relevant periods, showing consistent patterns. The appellant argued that this data, along with historical production capacities, did not support the allegations of clandestine activities due to no significant increase in consumption or production capacity.

4. Compounded Levy Scheme Assessment: The appellant pointed out their historical operations under a compounded levy scheme, emphasizing that the production levels during the disputed periods were within their established capacities, and no substantial changes were made to their machinery.

5. Assessment of Shortage: The Tribunal noted the lack of physical verification or weighment records to establish shortages of raw materials and finished goods, casting doubt on the validity of the demands based on eye estimations.

6. Conclusion: After considering all arguments and evidence, the Tribunal found that the demands against the mills were not sustainable. They emphasized the lack of concrete evidence supporting the allegations of clandestine activities and shortages. Consequently, the demands of duty and penalties were set aside, and the penalty on the Director was also revoked.

7. Final Decision: The appeals by the mills were allowed, and the Revenue's appeal was dismissed. The Tribunal concluded that the demands were unjustified based on the evidence presented and the lack of substantiated claims of wrongdoing.

This detailed analysis of the judgment showcases the legal arguments, evidentiary considerations, and the final decision reached by the Appellate Tribunal CESTAT CHANDIGARH in this complex case involving duty demands, clandestine removal allegations, and penalty impositions.