1996 (2) TMI 238 - AT - Central Excise

Summary

Issues Involved:

1. Alleged clandestine removal of 52 cartons of Nylon filament yarn and polyester yarn.
2. Imposition of duty amounting to Rs. 38,587.41 and penalty of Rs. 40,000/-.
3. Discrepancies in stock verification and counting methods.
4. Failure to provide calculation sheets and other relevant documents to the appellants.
5. Burden of proof for clandestine removal.

Issue-wise Detailed Analysis:

1. Alleged clandestine removal of 52 cartons of Nylon filament yarn and polyester yarn:

The appellants challenged the confirmation of duty for the alleged clandestine removal of 52 cartons of Nylon filament yarn and polyester yarn. The show cause notice alleged that these quantities of goods were cleared clandestinely based on discrepancies found during stock verification on three occasions.

2. Imposition of duty amounting to Rs. 38,587.41 and penalty of Rs. 40,000/-:

The Collector imposed a duty of Rs. 38,587.41 and a penalty of Rs. 40,000/- under various provisions of the Central Excise Rules. The appellants contended that the order was unsustainable as the Collector did not provide detailed findings or reasoning for the imposition of duty and penalty, brushing aside their submissions without proper consideration.

3. Discrepancies in stock verification and counting methods:

The officers conducted stock verification on three occasions, finding discrepancies each time. The appellants argued that the counting method was arbitrary, and they never agreed to the average weight per carton used by the officers. They also contended that the heavy stock and shortage of manpower made it impossible to verify the total weight accurately. The Collector's order did not address these discrepancies adequately.

4. Failure to provide calculation sheets and other relevant documents to the appellants:

The appellants requested copies of the calculation sheets and other notings made by the raiding team to verify the stock discrepancies. The department failed to provide these documents, which the appellants argued was essential for their defense. The Collector did not address this issue in his order, further weakening the department's case.

5. Burden of proof for clandestine removal:

The appellants argued that the burden of proving clandestine removal lies with the department, especially since the factory was under physical control with officers posted round the clock for supervision. The department failed to provide cogent and verifiable evidence of clandestine removal. The Tribunal has consistently held that mere shortage of physical stock without evidence is insufficient to confirm duty.

Conclusion:

The Tribunal found that the Collector's order was arbitrary and lacked due application of mind. The discrepancies in stock verification, failure to provide calculation sheets, and the absence of cogent evidence of clandestine removal led to the conclusion that the department did not meet the burden of proof. The impugned order was set aside, and the appeal was allowed.