2005 (10) TMI 120 - AT - Central Excise

Summary

Issues:
1. Duty demand on goods not fully received back after job work.
2. Imposition of personal penalty for non-receipt of goods.
3. Whether losses exceeding 5% can be subject to duty levy.

Analysis:
1. The appellants sent a product to their job worker for extraction, expecting a 95% recovery of a specific powder. However, losses exceeded 5%, leading to a debit note raised against the job worker for the unreturned powder. The Revenue demanded duty on the unreturned amount under Rule 57F(4), resulting in a confirmed duty and a personal penalty. The tribunal noted that the losses were part of a civil matter between the parties and not due to less yield. As there was no evidence of goods being otherwise recovered and removed, the tribunal held that the invisible loss at the job worker's end cannot be subjected to duty levy.

2. The tribunal agreed with the argument that the total loss of yield occurred gradually over time, rather than in a single instance. It acknowledged that variations in yield might occur, and the accumulated shortages were adjusted through debit notes as part of the contractual agreement between the appellants and the job worker. The tribunal emphasized that the duty demand cannot be based on shortages that are not due to less yield. Consequently, it concluded that the impugned orders were unsustainable and set them aside, allowing the appeal with consequential relief.

This judgment clarifies that duty demand cannot be imposed on losses exceeding a certain percentage during job work if such losses are not due to less yield. It underscores the importance of contractual agreements and the nature of losses in determining duty liability, protecting parties from undue duty burdens in cases of gradual or accumulated losses during the manufacturing process.