2009 (7) TMI 988 - AT - Central Excise

Clandestine removal - Evidence - Shortages of goods - Held that - apart from the Panchanama showing the shortages of the goods, there is otherwise, no evidence on record to show the clandestine removal of the goods. As such, physical stock taking also stands assailed by the assessee on the ground that it is impossible for the officers to carryout the same within a short span of time. No inventory stands produced by the Revenue - It is well settled that findings of the clandestine removal cannot be based upon merely shortages without any other reliable evidence on record. There being none in the present appeal, I extend the benefit of doubt to the appellant - appeal allowed - decided in favor of appellant.

Summary

Issues: Duty confirmation, Penalty imposition, Shortages in raw material and finished products, Cross-examination of panchas, Physical stock verification, Clandestine removal, Benefit of doubt

Duty Confirmation and Penalty Imposition:
The judgment revolves around confirming a duty of Rs. 2,07,330 against a manufacturing unit, along with a penalty of Rs. 58,382. Additionally, a penalty of Rs. 10,000 was imposed on another appellant under Rule 26 of Central Excise Rules, 2002. The appeals were disposed of collectively as they stemmed from the same impugned order by the authorities below.

Shortages in Raw Material and Finished Products:
The appellants, engaged in manufacturing HDPE/PP bags and woven fabrics, faced shortages of raw material and finished products during a physical stock verification following a search at their factory premises. Despite paying the duty involved in the shortages, proceedings were initiated against them leading to the impugned order.

Cross-Examination of Panchas and Physical Stock Verification:
The appellants contested the lack of actual verification of goods and requested cross-examination of the panchas. The impugned order noted that despite efforts, the panchas could not be located for cross-examination. The appellants argued that it was impossible for officers to measure all inputs and finished goods in the short time they were present at the factory premises.

Clandestine Removal and Benefit of Doubt:
The judgment highlighted the absence of evidence apart from the panchanama showing shortages to prove clandestine removal of goods. The appellant contested the shortages, stating that actual verification was not conducted, and shortages were only on paper. As no reliable evidence supported the findings of clandestine removal, and with the non-production of panchas for cross-examination, the case against the appellants was deemed weak. Consequently, the benefit of doubt was extended to the appellant, leading to the setting aside of the impugned order, and both appeals were allowed with consequential relief.

This comprehensive analysis of the judgment covers the duty confirmation, penalty imposition, shortages in raw material and finished products, cross-examination issues, physical stock verification challenges, the concept of clandestine removal, and the application of the benefit of doubt in the decision-making process.