1991 (6) TMI 183 - AT - Central Excise

Summary

Issues Involved:
1. Dispensation of pre-deposit of duty and penalty.
2. Shortage of tobacco waste and its accountal.
3. Non-accountal of tobacco based on theoretical production figures.

Issue-Wise Detailed Analysis:

1. Dispensation of Pre-Deposit of Duty and Penalty:
The applicants sought dispensation of pre-deposit of a total demand of Rs. 10,18,632.69 and a penalty of Rs. 10,000/-. Given the appeal was to be decided on a short point of law, it was taken up along with the stay petition for disposal on merits.

2. Shortage of Tobacco Waste and its Accountal:
The appellants argued that a shortage of 13,589 kgs. of tobacco waste was found during a stock check. The Production Manager admitted to the shortage but claimed the waste was dumped in a pit with oral permission from the Assistant Collector due to infestation concerns. The appellants contended that the Central Excise officers did not weigh the entire quantity in the pit, only partially, and orally informed the factory management that they were satisfied with the accountal of the waste. The lower authority dismissed this evidence, stating there was no authentication on the weighment card and denied cross-examination of the officers, which the appellants argued was essential for verifying the weighments. The Tribunal observed that the lower authority should have allowed cross-examination and noted that the appellants had requested permission for waste removal, which was granted. The Tribunal concluded that the lower authority's order was not maintainable due to the denial of natural justice and allowed the dispensation of duty and penalty on this ground.

3. Non-Accountal of Tobacco Based on Theoretical Production Figures:
The second demand of Rs. 2,48,457.44 was based on the theoretical figure of cigarettes produced per kg. of tobacco. The appellants argued that actual production varies due to factors like climatic conditions and machine efficiency, which had been accepted by the Department in the past. The Tribunal noted that variations from theoretical figures had been observed from 1980 to 1984 without any demands raised. The Department's manual acknowledges permissible differences between theoretical and actual output, emphasizing the need for factory-specific normal working differences. The lower authority's order was based solely on theoretical data without considering actual production and departmental guidelines. Therefore, the Tribunal held that the demand was not justified and allowed the dispensation of duty on this ground.

Conclusion:
The Tribunal found that the lower authority's order was passed without proper examination and in violation of natural justice principles. The appeal was allowed by remand for de novo adjudication, ensuring the appellants are given a reasonable opportunity for hearing and cross-examination of the officers.