2018 (6) TMI 1291 - AT - Central Excise

Clandestine removal - whether the appellant, who is manufacturer of Diesel Engine Pump set etc., was having excessive stock of finished goods in their factory on the day of inspection 07.03.2014 so as to remove the same clandestinely within the meaning of Rule 25 Central Excise Rules, 2002 read with Section 11 AC of the Central Excise Act, 1944? - maintainability of petition - Held that - Even if there were some finished goods in excess in the factory there is no presumption of clandestine removal and thus the provisions of Rule 25 of Central Excise Rules read with Section 11 AC of the Act are not attracted - the Annexure-A to the Panchnama is erroneous. The SCN is vitiated and not maintainable - appeal allowed.

Summary

Issues:
- Excessive stock of finished goods in factory leading to clandestine removal
- Calculation of excess finished goods and duty payable
- Confiscation and penalty under Rule 25 of Central Excise Rules, 2002
- Allegations of erroneous preparation of physical verification report
- Appeal against order of confiscation and penalty

Analysis:
1. The primary issue in this case was whether the appellant, a manufacturer of Diesel Engine Pump set, had excessive stock of finished goods in their factory on the day of inspection, potentially indicating clandestine removal. The physical verification revealed excess finished goods compared to recorded balance, leading to a calculation of excess goods and duty payable as per Annexure-A to the Panchnama.

2. The appellant contested the findings, explaining the stock of finished goods through a reconciliation chart showing no excess or shortage. They argued that certain goods were used in the manufacturing process but were not considered during inspection, leading to erroneous calculations. Additionally, they raised concerns about the ex-parte nature of the Order-in-Original due to lack of proper hearing opportunity.

3. The Commissioner (Appeals) acknowledged errors in the preparation of the physical verification report but maintained the decision on confiscation and penalty, reducing the redemption fine and penalty amount. The appellant, dissatisfied with the outcome, appealed to the Tribunal, emphasizing the lack of real discrepancy in their factory stock and challenging the basis for confiscation and penalty.

4. The Tribunal, after considering the arguments, found the Annexure-A to the Panchnama to be erroneous based on the evidence presented. Consequently, the show cause notice was deemed vitiated and not maintainable. The impugned order was set aside, and the appeal was allowed, granting the appellant consequential benefits as per the law.

5. The judgment highlights the importance of accurate physical verification reports, the right to a fair hearing, and the necessity for proper consideration of all relevant factors before imposing penalties or confiscation. The ruling serves as a reminder of the legal standards required in excise matters and the need for thorough assessments before penalizing parties involved in such cases.