2021 (8) TMI 71 - AT - Central Excise

Clandestine removal - alleged excess stock of 102.415M.Tons of MS TMT Bars - excess quantity remained unaccounted due to failure of the concerned person - Confiscation - penalty - HELD THAT - The Central Excise Officers during the visit recorded the panchnama in respect of physical stock of the finished goods. The panchnama started at 11.45 am on 13.01.2015 and lasted on 14.01.2015 at 6.30 am. I find that the officers have not taken into account the production which was continuing during their presence on 13.01.2015 till 14.01.2015 at 6.30 am. From the RG-1 Register it is evident that the production was continuously going all the days till 12.01.2015. Therefore it cannot be presumed that there is no production on 13.01.2015 - it is obvious that whatever production have taken place from 13.01.2015 at 11.45 am till 14.01.2015 at 6.30 am the same could not have been entered in RG-1 Register as the same was taken by the officer with them. The said day s production was recorded by the appellant in new RG-1 Register. There is no iota of evidence that the appellant has any intention to clear suchalleged excess stock without payment of duty. In the Order-In Original the same day s production was not doubted. In this undisputed fact this is not a case of non accountal of excisable goods as that accounting of the same day s production was supposed to be made on 14.01.2015 which was done by the appellant in their new Register since the RG-1 Register which was available on 13.01.2015 was taken over by the officer. In these circumstances the goods are not liable for confiscation. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Confiscation of alleged excess stock of MS TMT Bars under Central Excise Rules.
2. Imposition of penalties on the Appellant and the Appellant's Manager.
3. Discrepancies in physical stock assessment and lack of natural justice principles in the investigation.

Issue 1: Confiscation of alleged excess stock
The case involved the confiscation of an alleged excess stock of 102.415 M.Tons of MS TMT Bars found during a search conducted by Central Excise Officers. The officers took over the RG-1 Register, and discrepancies were noted between the physical and recorded stock. The Adjudicating Authority held that the unaccounted excess stock was liable for confiscation under Rule 25(1) of Central Excise Rules, 2002. The Appellant argued that the alleged excess stock was part of the same day's production and could not be entered in the RG-1 Register due to the officers taking it into custody. The Tribunal found that the production was ongoing during the search, and the appellant accounted for the production in a new register, concluding that the goods were not liable for confiscation.

Issue 2: Imposition of penalties
The Adjudicating Authority imposed a redemption fine and penalties on the Appellant and the Appellant's Manager based on the alleged excess stock. The Appellant contended that there was no evidence of an intention to clear the excess stock without duty payment, and the penalties were unjustified. The Tribunal agreed with the Appellant, stating that since the production was accounted for in a new register due to the officers holding the RG-1 Register, the penalties were not warranted. Consequently, the Tribunal set aside the penalties imposed on both the Appellant company and the Manager.

Issue 3: Discrepancies in physical stock assessment and natural justice
The Appellant raised concerns about the physical stock assessment, which was based on visual examination rather than physical weighment. Additionally, the Appellant argued that the denial of cross-examination during the investigation violated principles of natural justice. The Tribunal acknowledged the concerns but focused on the factual circumstances of the case. It found that the production was properly recorded by the Appellant in a new register, and the alleged excess stock was accounted for. The Tribunal emphasized that the penalties and confiscation were not justified based on the facts of the case, irrespective of the cited judgments.

In conclusion, the Appellate Tribunal CESTAT Ahmedabad ruled in favor of the Appellant, setting aside the impugned order and providing consequential relief. The judgment highlighted the importance of proper recording of production, especially in situations where regulatory authorities take control of essential documents, ensuring that penalties and confiscation are justified based on factual evidence rather than assumptions.