2018 (7) TMI 12 - AT - Central Excise

Clandestine removal or not? - N/N. 1/95-CE, dated 04.01.1995 - Shrinkage in the value of goods during the process - It is the case of the department that since the loss is much higher than what has been agreed to in terms of their bond, the assessee is bound to account for or pay duty on the excess loss - Held that - In identical cases, the Delhi and Mumbai Benches of CESTAT have already taken a view that excess shrinkage of fabrics when sent out for job work does not automatically lead to the conclusion that there was clandestine removal and no duty is chargeable on them - reliance placed in the case of M/S. UNIWORTH TEXTILES LTD. VERSUS C.C.E. RAIPUR 2016 (5) TMI 609 - CESTAT NEW DELHI . No duty is demandable under Section 11A on the assessee or interest under section 11AB and no penalty is imposable under section 11 AC - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Interpretation of exemption notification for 100% EOU regarding goods sent for job work.
2. Validity of demand for duty, interest, and penalty due to excess shrinkage in processed goods.
3. Compliance with input-output norms prescribed by the Asst. Commissioner.
4. Comparison with similar cases where excess shrinkage did not lead to duty imposition.

Analysis:
1. The appeal concerned the appellant, a 100% EOU, sending Polyester Texturised Yarn for conversion into Polyester Grey fabrics under a specific exemption notification. The notification required a bond for proper accountal of goods and authorized the Asst. Collector to impose conditions. The Asst. Commissioner set input-output ratios for conversion. The department issued a show cause notice demanding duty, interest, and penalty due to excess shrinkage beyond prescribed norms.

2. The Commissioner (Appeals) upheld the demand, emphasizing the appellant's responsibility to adhere to prescribed limits and account for shrinkages properly. The appellant argued shrinkage is natural, with variations based on processes and chemicals used. They cited cases where excess shrinkage did not lead to duty imposition, emphasizing no clandestine removal allegations.

3. The department contended the appellant must strictly adhere to conditions, including prescribed norms, as agreed upon while clearing goods. They argued the demand under section 11A with extended limitation period, interest under section 11AB, and penalty under section 11 AC were justified due to the breach of agreed-upon conditions.

4. The Tribunal found excess shrinkage, without clandestine removal allegations, does not warrant duty imposition. Citing precedents, the Tribunal held that excess shrinkage does not automatically lead to duty liability. Consequently, the Order-in-Appeal was set aside, ruling in favor of the appellant.

In conclusion, the Tribunal allowed the appeal, setting aside the Order-in-Appeal and determining that no duty was demandable under Section 11A, no interest under section 11AB, and no penalty under section 11 AC. The judgment highlighted the importance of considering specific circumstances and adherence to prescribed conditions in duty-related matters.