2012 (10) TMI 692 - AT - Central Excise

Demand and penalty shortage of input allegation of clandestine removal of goods Held that - Merely because the assessee chooses not to contest the demand on account of shortages, so as to avoid litigations, by itself, does not mean that allegation of clandestine removal stand established against him, especially in the absence of any corroborative evidence to that effect - no justifiable reasons to impose penalty upon the appellant

Summary

Issues:
1. Confirmation of duty demand
2. Imposition of penalty on the respondents

Confirmation of duty demand:
The case involved a visit by Central Excise officers to the respondent's factory, where a shortage of 14245 Kgs. of PVC pipe and fittings was detected in the stock of the final product. The authorized signatory admitted the shortages and offered to pay duty of Rs.1,04,819, which was also debited by the respondents. Subsequently, proceedings were initiated through a show cause notice proposing confirmation of demand and penalties. The Assistant Commissioner confirmed the demand and imposed penalties on both the manufacturing unit and the authorized signatories. The respondents challenged this order before the Commissioner (Appeals), arguing that the shortages were not due to clandestine removal but accepted the duty liability and paid it. They contended that the penalty imposition was unjustified as there was no evidence of clandestine removal, only shortages. The Commissioner (Appeals) set aside the penalty based on the absence of corroborative evidence, relying on precedent decisions and the Punjab & Haryana High Court's ruling in a similar case.

Imposition of penalty on the respondents:
The Tribunal upheld the Commissioner (Appeals) decision, emphasizing that the duty demand was based solely on shortages of the final product without any evidence of clandestine removal. Precedent cases like Galaxy Textiles vs. CCE, Vapi, CCE Kanpur vs. Rajasthan Transformers & Switchgear, and CCE, Kanpur vs. Kapoor Print Pack Pvt. Ltd. were cited to support the decision. The Tribunal noted that the mere acceptance of shortages and payment of duty by the assessee did not automatically establish clandestine removal, especially in the absence of corroborative evidence. The Revenue argued that penalty should be imposed under Section 11AC since the duty confirmation was not challenged. However, the Tribunal held that choosing not to contest the demand due to shortages did not imply admission of clandestine removal, leading to the rejection of the Revenue's appeals and disposal of cross objections.

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