2021 (9) TMI 1260 - AT - Central Excise

Clandestine removal - removal of input as such in the guise of Waste Scrap - removal of Film grade granules as such clandestinely which is not capable of being used in the manufacture of final product - shortage of stock - HELD THAT - The demand was raised on the removal of granules as such on the basis of Annexure C on the ground that the granules are of film grade which cannot be used in the manufacture of the final product of the appellant - there is also evidence i.e. Diaries recovered from the appellant s office on the basis of those diaries demand was raised taking the evidence as invoice of waste and scrap which was prepared for removal of granules under the guise of waste and scrap. Therefore, there is a force in the submission of the learned counsel that once again demand of the same removal was made showing in Annexure C for which the demand was computed in Annexure E1. However, there is a duplication of demand in respect of 10 Invoices which are appearing in Annexure A as well as Annexure C since the department has made out the demand even for Annexure C, considering Annexure B therefore, it is implied that the Annexure A has been considered in Annexure B that is the reason that no separate demand was raised in Annexure A. The 10 invoices which are common in Annexure A C demand in respect of those invoices needs to be reduced from the total demand of ₹ 13,31,112/-. As regard the remaining demand of ₹ 4,41,142/-, it is found that the representative of the appellant have given a categorical statement that the film grade granules are not used in the manufacture of their final product and rather the film grade granule was not received in the factory therefore, it is clear that it was sold directly. This statement has not been retracted nor the appellant has cross-examined the witness. Therefore, on the basis of this statement it is clear that the granules for which Cenvat amount of ₹ 4,41,142/- the same quantity was not used in the manufacture therefore, Cenvat Credit on this ground is not available to the appellant. Hence, the demand of ₹ 4,41,142/-, interest and penalty is upheld. Appeal allowed in part.

Summary

Issues:
1. Alleged clandestine removal of input materials.
2. Dispute over duplication of demand for certain clearances.
3. Shortage of stock during inventory.

Issue 1: Alleged clandestine removal of input materials:
The appellant, engaged in manufacturing, faced a Show Cause Notice following an investigation by DGCEI. The Notice alleged clandestine removal of materials, resulting in demands totaling &8377; 23,43,527. The appellant acknowledged and did not dispute demands of &8377; 9,51,649 and &8377; 60,766 but contested a demand of &8377; 13,31,112. The appellant argued that this demand duplicated the earlier demands, citing evidence from the Show Cause Notice. The Revenue representative maintained the validity of the demands. The Tribunal upheld the undisputed demands but found a duplication in the demand of &8377; 13,31,112. The Tribunal noted evidence from diaries and concluded that certain invoices were duplicated in the demands, reducing the total demand amount.

Issue 2: Dispute over duplication of demand for certain clearances:
The appellant's counsel argued that the demand of &8377; 13,31,112 was based on invoices that were already included in previous demands. The Tribunal agreed, finding a clear duplication in the demands due to the same invoices being considered multiple times. The Tribunal also noted that the film grade granules, for which a demand of &8377; 4,41,142 was made, were not used in the manufacturing process as claimed by the appellant. This claim was supported by an unchallenged statement and lack of cross-examination, leading to the Tribunal upholding this demand as well.

Issue 3: Shortage of stock during inventory:
The investigation revealed a shortage of 4.90 MT during stocktaking, leading to a demand of &8377; 60,766. The appellant did not dispute this demand, and the Tribunal upheld it along with interest and penalty already paid by the appellant. The Tribunal's decision allowed for a reduction in the total demand amount due to the identified duplication and upheld the demand related to the unutilized film grade granules.

In conclusion, the Tribunal partially allowed the appeal, upholding certain demands while reducing others based on the evidence and arguments presented. The appellant was given the opportunity to pay the adjusted amount within a specified period, with a corresponding reduction in penalty if paid promptly.