2012 (8) TMI 170 - AT - Central Excise

Waiver of pre-deposit - manufacture of MS ingots alleged that applicants suppressed production of excisable goods and short paid the duty - demand is confirmed on the basis of electric consumption as well as after taking into consideration the data in respect of cost of production and sale considerations Held that - Per MT cost of production of finished goods was worked out on their reported turnover as per the audited financial account for the year 2007-08 the cost of production per MT for the period March 2008 to August 2008 is Rs.33,476/- whereas the transaction value per MT as per ER-1 returns is only Rs.31,690/- which is much less than even the cost of production - demand is not merely on the basis of electric consumption - Commissioner (Appeals) has not decided the appeals on merits - appeals filed by the appellants were dismissed for non-compliance with the provisions of Section 35F of the Central Excise Act as the appellants failed to comply with the conditions of the stay order passed by the Commissioner (Appeals) - matter is remanded to the Commissioner (Appeals) to decide afresh - appeals are disposed of by way of remand.

Issues:
1. Waiver of pre-deposit of duty, interest, and penalty for applicants engaged in manufacturing MS ingots.
2. Contention regarding demand based on electricity consumption and suppression of production.
3. Reliance on previous tribunal decision and expert report.
4. Revenue's argument based on manufacturing cost and sale considerations.
5. Confirmation of demand based on electric consumption and cost of production.
6. Financial hardship plea and directive for partial deposit of duty.
7. Commissioner (Appeals) dismissal for non-compliance with stay order.

Analysis:

Issue 1: The applicants sought waiver of pre-deposit of duty, interest, and penalty amounting to Rs.49,30,253/-, with one applicant specifically requesting waiver of penalty pre-deposit. The demand was confirmed for the period March 2008 to August 2008 due to alleged suppression of production of excisable goods and duty underpayment.

Issue 2: The applicants argued that the demand was solely based on a report by Dr. Batra regarding electricity consumption for manufacturing MS ingots, contending that without evidence of raw material procurement and duty payment, the demand was not sustainable. They cited a Tribunal decision where a similar demand solely based on electricity consumption was set aside and upheld by the Hon'ble Allahabad High Court.

Issue 3: The applicants highlighted that Dr. Batra's report required the involvement of an expert from the metallurgical field, which was not done in their case. They argued that without proper expert assessment, the demand could not be upheld.

Issue 4: The Revenue countered by presenting evidence of manufacturing cost and sale prices, indicating that the applicants were selling below production cost. They referenced a decision by the Hon'ble Bombay High Court in a similar case to support their argument.

Issue 5: The Tribunal found the demand confirmed not only based on electricity consumption but also considering the cost of production and sale values. The discrepancy between the cost of production and transaction value per MT led to the conclusion that the demand was not solely reliant on electricity consumption, differentiating it from the precedent cited by the applicants.

Issue 6: Despite the applicant's financial hardship plea due to factory closure, the Tribunal directed a partial deposit of Rs.12,00,000/- within six weeks, with a waiver of the remaining duty, interest, and penalties. This decision was based on the circumstances of the case, financial hardship, and the interest of the Revenue under Section 35 of the Central Excise Act.

Issue 7: The Commissioner (Appeals) had dismissed the appeals due to non-compliance with the stay order conditions, without deciding on the merits of the case. Consequently, the Tribunal set aside the order and remanded the matter to the Commissioner (Appeals) for a fresh decision after the deposit of the specified amount, ensuring a fair opportunity for the appellants to be heard.

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