2023 (1) TMI 451 - AT - Central Excise

Clandestine removal - aluminium circles - it is alleged that the appellant has started manufacturing from July 2010 and it has been proposed that why duty demand of Rs.10, 17, 041/- for the period July 2010 to May 2011 should not be demanded alongwith the interest and penalty on the firm and partners as well - HELD THAT - The contentions of the appellant have been accepted by the ld. Commissioner (Appeals) to a large extent. Thus more or less the appellant has done only test production prior to 11.11.2010 and they have been doing mainly trading of finished goods as the factory was not fully set up at the testing stage. Further it is found that Revenue has taken contrary stand wherein in the first show cause notice it is admitted that assessee has started commercial production from November 2010 wherein in the second show cause notice duty have been demanded from July 2010. The quantum of finished goods liable to duty for the period 01.07.2010 to 31.10.2010 shall be NIL - As the duty demand from July 2010 to October 2010 have been set aside. The penalty under Section 11AC read with Rule 25 is set aside. The appeal is allowed.

Issues Involved:
1. Validity of the demand for duty of Rs. 3,23,761/- for the period July 2010 to October 2010.
2. Confiscation of seized goods valued at Rs. 8,27,980/-.
3. Imposition of penalties under Section 11AC read with Rule 25 and Rule 26.
4. Alleged commencement of manufacturing from July 2010 versus November 2010.

Issue-wise Detailed Analysis:

1. Validity of the Demand for Duty of Rs. 3,23,761/- for the Period July 2010 to October 2010:
The appellant contested the demand, arguing that the firm started commercial production on 11.11.2010 and paid duty under the Compounded Levy Scheme (CLS) from November 2010. The Revenue issued two conflicting show cause notices'one alleging manufacturing started from 11.11.2010 and another alleging it started in July 2010. The Commissioner (Appeals) partially accepted the appellant's contentions, reducing the duty demand to Rs. 3,23,761/- based on the actual production and trading records. However, the Tribunal found that the appellant had only done test production before 11.11.2010 and mainly engaged in trading, thus setting aside the demand for the period from July 2010 to October 2010.

2. Confiscation of Seized Goods Valued at Rs. 8,27,980/-:
The seized goods included finished goods and raw materials found without documentary evidence during a search. The Commissioner (Appeals) set aside the confiscation, noting that the appellant was not required to maintain detailed records while paying duty under CLS. The Tribunal upheld this decision, stating that the seizure and confiscation were improper as the appellant had complied with CLS requirements.

3. Imposition of Penalties under Section 11AC read with Rule 25 and Rule 26:
Penalties were initially imposed on the appellant and its partners for non-compliance with CLS provisions and alleged evasion of duty. The Commissioner (Appeals) reduced the penalties, acknowledging the appellant's partial compliance and the venial nature of the lapse. The Tribunal further set aside the penalties, emphasizing that the appellant had taken steps to pay duty under CLS and that the demand for the disputed period was invalid.

4. Alleged Commencement of Manufacturing from July 2010 versus November 2010:
The Revenue's two show cause notices took contradictory positions on the start date of manufacturing. The appellant consistently maintained that commercial production began in November 2010, supported by excise duty payments and other records. The Tribunal found the appellant's explanation credible and consistent, thus rejecting the Revenue's claim of manufacturing from July 2010 and setting aside the related duty demand and penalties.

Conclusion:
The Tribunal allowed the appeal, setting aside the demand for duty and penalties for the period from July 2010 to October 2010. It held that the appellant's commercial production began in November 2010, and the seizure and confiscation of goods were improper. The penalties under Section 11AC read with Rule 25 and Rule 26 were also set aside, providing relief to the appellant.

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