1998 (11) TMI 271 - AT - Central Excise

Summary

Issues:
- Appeal against demand confirmation and penalty imposition by the Commissioner based on shortage of HDPE bags used for packing caustic soda flakes without duty payment.

Analysis:
1. The appellant, M/s Kanoria Chemical & Industries Ltd., appealed against the demand confirmation of Rs. 23,48,548.50 and penalty of Rs. 10 lakhs imposed by the Commissioner. The appellant argued that the department's case was solely based on the shortage of 30,826 HDPE bags used for packing caustic soda flakes without duty payment between 1991 to 1996. The appellant maintained records of the bags received and used for packing. They contended that there was no conclusive evidence presented by the department to prove clandestine removal of the finished product without duty payment. The appellant emphasized that no discrepancy was found during officer visits regarding the inputs for their final product. The entire case was built on presumption without concrete evidence, making the demand and penalty unsustainable.

2. In response, the department argued that the appellant failed to maintain proper records of HDPE bags allegedly damaged during the manufacturing process. They highlighted discrepancies in the concentration of caustic soda flakes manufactured by the appellant. Referring to a statement, it was noted that the concentration recorded in statutory records was unusually high, indicating possible discrepancies in production quantities. The department also pointed out instances where the number of bags used for packing exceeded the available quantity in the plant. These factors led the department to conclude that the appellant had manufactured and cleared caustic soda flakes without paying the requisite duty.

3. Upon reviewing the arguments from both parties, the Tribunal observed that the department's case heavily relied on the shortage of HDPE bags, which was not sufficient evidence to prove clandestine manufacturing and clearance of caustic soda flakes without duty payment. The contentions regarding the concentration of flakes were also deemed insufficient, as the authorized representative of the appellant had stated a broader concentration range in his statement. The Tribunal noted that the absence of damaged bags did not conclusively indicate their illicit use for removing caustic soda flakes. Consequently, the evidence presented was deemed insufficient to support the department's claims. Therefore, the Tribunal set aside the order, allowing the appeal in favor of the appellant.