2023 (5) TMI 1126 - AT - Central Excise

Clandestine Removal - clearance of finished goods without proper accounting in order to evade Central Excise Duty as the stock, as mentioned in the RG-1 register was not tallying with the physical stock - shortages determined by eye estimation - HELD THAT - This question has been answered in negative by the tribunal in number of case. Decision in the case of DHEBAR STEEL RE-ROLLERS VERSUS COMMISSIONER OF CENTRAL EXCISE, RAIPUR 2002 (2) TMI 189 - CEGAT, NEW DELHI referred, where it was held Revenue had not produced any evidence to show that the shortages and excesses were based on actual weighment of the inputs and final products. Therefore, the order of confiscation in respect of the goods found excess in the factory and demand of duty in respect of the goods found short is not sustainable. There are no merits in the impugned order - appeal allowed.

Summary

Issues Involved:
The issues involved in this case are non-compliance with Section 35F of the Central Excise Act, 1944, shortage of finished goods found during stock inspection, alleged evasion of Central Excise Duty, and the validity of the show cause notice issued to the appellant.

Issue 1: Non-Compliance with Section 35F of the Central Excise Act, 1944:
The appeal was dismissed as the appellant failed to comply with the conditions of Section 35F of the Central Excise Act, 1944 and the terms of a specific Miscellaneous Order. The tribunal emphasized the need to balance the interests of Revenue and the appellant as per the law laid down in Section 35F.

Issue 2: Alleged Evasion of Central Excise Duty:
The appellant was accused of clearing finished goods without proper accounting to evade Central Excise Duty. A show cause notice was issued, alleging deliberate evasion of duty by clearing goods without proper documentation. The shortage of goods was noted during a visit by the preventive team to the factory premises.

Issue 3: Validity of Show Cause Notice:
The show cause notice, which demanded recovery of Central Excise Duty, interest, and penalties, was confirmed by the original authority and upheld in the impugned order. The appellant challenged the notice, arguing that shortages determined by eye estimation should not lead to allegations of clandestine clearance.

Judgment Summary:
The tribunal found that the shortages determined by eye estimation could not be the sole basis for alleging clandestine clearance, citing precedents where such allegations required concrete evidence and not mere assumptions. The tribunal referenced previous cases to support its decision, emphasizing the need for tangible evidence in cases of alleged evasion. As discrepancies in stock and lack of incriminating documents were not proven, the tribunal set aside the impugned order, ruling in favor of the appellant.

Separate Judgment:
The appeal was allowed, and the impugned order was set aside, highlighting the insufficiency of evidence to establish clandestine manufacture and clearance by the appellant.