2010 (6) TMI 220 - AT - Central Excise

Demand Clandestine removal - The dispute relates to the clearance of scrap for which the appellant has made a declaration before the income tax authorities. The appellant s plea is that such scrap is out of the trading of scrap, whereas Revenue is of the view that the same stand generated during the course of manufacture and as such was liable to be cleared on payment of duty. Held that No evidence of clandestine removal. Scrap if generated, must lead to manufacture of goods which might have been cleared without duty payment. No allegation much less evidence regarding same. SCN contradictory. No infirmity in the impugned order setting aside demand.

Summary

Issues:
1. Duty confirmation set aside by the Commissioner (Appeals).
2. Dispute regarding clearance of scrap.
3. Allegations of clandestine removal of scrap.
4. Lack of evidence for clandestine removal.
5. Contradictory show cause notice.
6. Failure to establish scrap as generated during manufacture.
7. Lack of evidence of manufacture and clearance of final product.

Analysis:
1. The primary issue in this case revolves around the duty confirmation set aside by the Commissioner (Appeals), leading to the Revenue filing an appeal. The lower duty amount and the detailed reasoning provided by the Commissioner (Appeals) are noted by the appellate tribunal.

2. The dispute centers on the clearance of scrap, with the appellant claiming it was from trading activities, while the Revenue argues it was generated during manufacture, necessitating duty payment. The Commissioner (Appeals) found that the scrap cleared was unaccounted for initially but later declared to the income tax department, leading to its inclusion in the books of account.

3. Allegations of clandestine removal of scrap were made, but the appellate authority highlighted the contradictory nature of the show cause notice, which mentioned issuing invoices for scrap clearance. The lower authority failed to provide evidence linking the cleared scrap to manufacturing processes, casting doubt on the clandestine removal claims.

4. Despite the Revenue's assertions, no concrete evidence of clandestine removal was presented. The absence of proof regarding the manufacturing and clearance of final products further weakened the Revenue's case, as noted by the appellate authority.

5. The show cause notice's contradictions were emphasized, especially regarding the issuance of invoices for scrap clearance, which did not align with the clandestine removal allegations. The lack of evidence supporting the Revenue's claims added weight to the appellant's arguments.

6. The lower authority's failure to establish the scrapped materials as generated during manufacturing processes was a crucial point of contention. The Commissioner (Appeals) found merit in the appellant's contention, as the evidence did not conclusively link the cleared scrap to manufacturing activities.

7. Lastly, the absence of evidence indicating the manufacture and clearance of final products without duty payment further supported the decision to set aside the demand confirmed by the lower authority. The lack of substantiation for Revenue's claims led to the rejection of their appeal by the appellate tribunal.