2022 (3) TMI 747 - AT - Central Excise

Clandestine removal - shortages of stock - it is claimed that there is no error as physical verification of stock has not been done properly and the same is done only by eye estimation - HELD THAT - There is no calculation sheet. Against the quantity mentioned against all the three items of stock of finished goods, it is not explained how the said quantity has been arrived at. Thus, evidently, it is a case of eye estimation. Further, it is found that there is only an apparent difference of about 8 MT in the three items, which is insignificant, not requiring any adverse inference. The show cause notice is wholly mis-conceived under the facts and circumstances - Appeal allowed - decided in favor of appellant.

Summary

Issues:
- Stock verification and shortage of finished goods
- Show cause notice invoking extended period of limitation
- Allegation of clandestine removal
- Calculation error and eye estimation
- Decision on appeal and consequential refund

Stock verification and shortage of finished goods:
The case involved a stock verification conducted by Revenue officers at the factory premises of the appellant. A statement regarding the physical stock, signed by the Excise Clerk, revealed a shortage in the stock of three items of finished goods. This shortage led to the issuance of a show cause notice invoking an extended period of limitation.

Show cause notice invoking extended period of limitation:
The show cause notice dated 10.11.2005 alleged a discrepancy in the physical stock of finished goods and demanded duty payment of ?6,15,645 along with penalty and interest. The Director of the appellant submitted a written representation stating that the stock verification was not done properly and was based on eye estimation, with a previous inspection showing an excess quantity that was not considered in the subsequent stock calculation.

Allegation of clandestine removal:
Revenue authorities suspected the case to be one of clandestine removal, prompting them to demand an explanation from the appellant regarding the discrepancy in stock. The appellant contested this allegation, highlighting the calculation error and the previous seizure of excess quantity not factored into the current stock assessment.

Calculation error and eye estimation:
Upon reviewing the arguments and the Panchnama dated 10.01.2001, the Tribunal found that the stock quantity discrepancies were based on eye estimation without a proper calculation sheet. The insignificant difference of about 8 MT in the three items did not warrant adverse inference, leading to a conclusion that the show cause notice was misconceived.

Decision on appeal and consequential refund:
Based on the findings, the Tribunal allowed the appeal, setting aside the impugned order. The appellant was deemed entitled to a consequential refund under Section 35 FF with interest, following a precedent set by the Tribunal's Division Bench in a previous case involving Parle Agro Pvt. Ltd.

This detailed analysis of the judgment showcases the key issues addressed, the arguments presented by both parties, and the Tribunal's decision based on the evidence and legal considerations presented during the proceedings.