2018 (9) TMI 1360 - AT - Central Excise

Clandestine removal - parallel invoices - shortage of raw material and finished goods - Held that - The appellant can have no grievance against the present impugned order in as much as the disputed balance amount of duty already stands set aside by the Commissioner (Appeals) and the confirmation is only to the extent to which the demand was confirmed vide the earlier order of Commissioner(Appeals), which was not challenged and which had attained finality. There are no merits in the contention of ld. Adv. that by remanding matter to Commissioner (Appeals) on the Revenues appeal, the entire proceedings before Commissioner (Appeals) get reopened, in as much as the appellant never challenged the earlier order of Commissioner (Appeals) and the Revenue s appeals was only on the short ground of the powers of Commissioner( Appeals) to remand. Appeal dismissed - decided against appellant.

Summary

Issues:
1. Duty evasion based on clandestine activities.
2. Shortages in raw materials and finished goods.
3. Confirmation of demand, penalty imposition, and remand proceedings.

Analysis:
1. The appellant, engaged in manufacturing MS ingots and CTD bars + billets, faced allegations of duty evasion due to clandestine activities uncovered during investigations. Three parallel invoices not reflected in the records raised suspicions of duty non-payment. Subsequent stock-taking at the factory revealed shortages in raw materials and finished goods, with statements from authorized representatives admitting to discrepancies related to final products and raw materials. Proceedings were initiated, resulting in a demand of duty amounting to ?16,55,92/- and imposition of a penalty by the Original Adjudicating Authority.

2. The Commissioner (Appeals) reviewed the case, acknowledging the appellant's payment of duty on a portion of the disputed items but raised concerns about the excess duty confirmed. The Commissioner upheld a demand of ?12,77,429/- plus Education Cess of ?25,549/-, remanding the matter for further quantification. The Revenue challenged this decision on the grounds of the Commissioner's power to remand, leading the Tribunal to send the case back to the Commissioner for a reevaluation based on the merits of the case.

3. In the subsequent order, the Commissioner (Appeals) upheld the demand for the confirmed amount of ?12,77,429/- plus Education Cess of ?25,549/-, along with penalties, while setting aside the remaining confirmation and penalties imposed. The Tribunal's decision was challenged before the Appellate Tribunal CESTAT NEW DELHI, where it was argued that the appellant had already accepted liability for the confirmed demand in a previous order that had attained finality. The Tribunal upheld the impugned order, emphasizing that the appellant had not challenged the earlier order, and rejected the appeal based on the existing findings and lack of merit in the contentions raised.

This detailed analysis of the judgment highlights the issues of duty evasion, shortages, confirmation of demand, penalty imposition, and the subsequent legal proceedings leading to the final decision by the Appellate Tribunal.