2019 (8) TMI 71 - AT - Central Excise

Clandestine removal - MS Ingots - period from January, 2008 to February, 2008 - issuance of two SCN for two different periods - HELD THAT - The learned Commissioner (Appeals) had not categorically recorded the findings that the 506 MTs alleged to have been cleared clandestinely for the period February and March, 2008 was also subject matter of the dispute in the earlier show-cause notice. Also, the learned Advocate for the respondent could not produce any evidence or worksheet to show that the demand relating to 506 MTs of MS Ingots was also included in the show-cause notice dated 9.5.2008. To ascertain the said facts, we remand the matter to the adjudicating authority, who would consider whether the demand relating to 506 MTs for the period February to March, 2008 were also included in the total quantity alleged to have been cleared in the first show-cause notice dated 9.5.2008. Appeal allowed by way of remand.

Summary

Issues:
- Alleged clandestine removal of goods without payment of duty
- Overlapping of demand due to multiple show-cause notices

Analysis:
1. Alleged Clandestine Removal of Goods: The appeal was filed by the Revenue against the Order-in-Appeal passed by the Commissioner of Central Excise (Appeals) concerning the alleged removal of MS Ingots without payment of duty. The initial show-cause notice was issued based on electricity consumption data, while a subsequent notice was issued following specific intelligence and investigation revealing the removal of 506 MTs of MS Ingots without duty payment. The Revenue contended that the subsequent notice was valid as it was based on new evidence and admissions by involved parties. The Commissioner (Appeals) allowed the appeal, prompting the Revenue to challenge this decision.

2. Overlapping of Demand: Both parties acknowledged the issuance of two show-cause notices covering the same alleged clandestine removal of goods. The Revenue argued that there was no overlapping of demand as the subsequent notice was supported by new evidence and statements from involved parties. On the other hand, the respondent argued that the Commissioner (Appeals) rightfully set aside the demand for the subsequent period, citing overlapping of the demand. The Tribunal noted the lack of explicit findings regarding the inclusion of the 506 MTs clearance in the first notice and remanded the matter to the adjudicating authority for further examination.

3. Tribunal Decision: After considering the arguments from both sides, the Tribunal allowed the appeal by remanding the case to the adjudicating authority for a detailed assessment. The Tribunal emphasized the need to determine whether the demand related to the 506 MTs of MS Ingots for the period February to March, 2008 was included in the first show-cause notice. The decision kept all issues open for further examination, highlighting the importance of clarifying the inclusion of specific quantities in the notices to avoid overlapping demands and ensure procedural fairness.

In conclusion, the judgment addressed the issues of alleged clandestine removal of goods without duty payment and the potential overlapping of demand due to multiple show-cause notices. The decision to remand the case for a detailed assessment reflects the Tribunal's commitment to ensuring procedural clarity and fairness in resolving disputes related to duty payments and alleged irregularities in goods removal.