2012 (9) TMI 568 - AT - Central Excise

Penalty under Rule 25 of Central Excise Rules, 2002 - assessee stated that as no clandestine removal hence no penalty - Held that - Shortage detected by physical inventory investigation was possible outcome of clandestine removal of the finished goods in absence of any evidence surfaced contradicting investigation story - once the physical inventory resulted in shortage, onus of proof was discharged by investigation, thus burden of proof was discharged by Revenue bringing home the appellant to the shortage found. AS Revenue is not in appeal against reduction in penalty by first appellate authority it is settled law that appellant should not be put to adversity when other side does not challenge the impugned order for restoration of adjudication result. Therefore, penalty imposed under Rule 25 of Central Excise Rules, 2002 does not call for intervention.

Issues:
1. Imposition of penalty under Rule 25 of Central Excise Rules, 2002 for alleged clandestine removal of finished goods.
2. Burden of proof on the appellant regarding stock shortage.
3. Adherence to principles of natural justice during the investigation and adjudication process.
4. Confirmation of duty liability and interest based on shortage detected.

Analysis:

1. Imposition of Penalty: The appeal contested the imposition of penalty under Rule 25 of Central Excise Rules, 2002, arguing that no clandestine removal was proven. The Revenue, however, relied on the first appellate order to support the penalty imposition. The Tribunal noted the lack of evidence reconciling a significant stock shortage of finished goods and upheld the penalty based on the physical inventory investigation results. The shortage was deemed a possible outcome of clandestine removal, and the burden of proof was considered discharged by the investigation, leading to the confirmation of duty liability and interest.

2. Burden of Proof: The appellant failed to provide evidence to challenge the manner of inventory taken or to explain the stock shortage detected during the investigation. The Tribunal emphasized that the appellant witnessed the inventory and did not provide any evidence contradicting the investigation findings. As a result, the burden of proof was shifted to the appellant, and the Tribunal concluded that the Revenue did not leave the appellant defenseless, leading to the confirmation of duty liability and interest.

3. Natural Justice: The Tribunal highlighted that three stages of natural justice were followed during the process. The investigation stage concluded without rebuttal, and the appellant had the opportunity to present a defense before the adjudicating authority. Despite the appellant's failure to discharge the burden of proof, the facts remained intact during the first appellate stage. The Tribunal concluded that the appellant had been given ample opportunities to defend against the allegations, ensuring adherence to principles of natural justice.

4. Confirmation of Duty Liability: The Tribunal noted that the Revenue did not appeal against the reduction in penalty by the first appellate authority. Following settled law that prevents imposing additional adversity on the appellant when the other party does not challenge the order, the Tribunal dismissed the appeal against the penalty imposed under Rule 25 of Central Excise Rules, 2002. Consequently, the duty liability and interest were confirmed based on the shortage detected during the investigation.

In conclusion, the Tribunal upheld the penalty under Rule 25 of Central Excise Rules, 2002, based on the evidence of stock shortage and the failure of the appellant to provide a satisfactory defense. The judgment emphasized the importance of adhering to principles of natural justice and shifting the burden of proof to the appellant in cases involving alleged clandestine removal of goods.

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