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2013 (9) TMI 692 - AT - Central ExciseShortage of Goods - undervaluation - shout receipt of inputs - private records - demand of duty - proof - Held that - Appellant had no case as regards confirmation of the demand of shortage of finished goods - The finished goods which were polyester filament yarn and the assessee had not been able to prove from records that the said shortage was due to losses or pilferage in his premises - It was also to be noted that the assessee had not claimed any wastage during the earlier period but on being detected - the claim of the assessee does not have any firm legal backing was without any substance, as the appellant himself should have reconciled the stocks earlier and could have informed the department as regards the shortage - Decided against assessee. Demand on the Input Short Received - Held that - It was substantiated by the appellant that when the shortages were detected - The claim of the appellant was that it was due to weighment differences and it was not a question of inputs not received - they lodged a claim with the supplier as regards the shortages - The supplier of the goods had admitted that there could be shortage and had compensated appellant on which the appellant had already reversed the cenvat credit attributable to such polyester chips. COMMISSIONER OF C. EX., CHENNAI Versus BHUWALKA STEEL INDUSTRIES LTD. 2009 (11) TMI 177 - CESTAT, CHENNAI LB - There was no diversion of the inputs enroute and there was also no findings of clandestine diversion/sale of inputs - The losses which had been claimed by the appellant was claimed to be on weighment differences, which was not contested seriously by the Revenue, as both the lower authorities have only recorded summarily that the assessee had not putforth any evidence in the defence - appellant had made out a case for setting aside the demands raised and confirmed by the lower authorities to the tune - that portion of the order was set aside which upholds the confirmation of demand of for short receipt of inputs. Demand on Waste Yarn on the Ground of Undervaluation Held that - Accepting the responsible statement of the counsel that the total excess duty on such differences after considering the payment of central excise duty by the appellant on the invoices - the amount of duty which had been not paid by the appellant by undervaluing the yarn waste needs to be confirmed - The order to the extent it confirmed the demand of the duty on the yarn waste which had been undervalued was upheld - There was existence of the private notebook, which indicated an amount received in excess of the amount which had been billed in the corresponding invoices - such an amount received by the appellant in excess of the amount billed needed to be confirmed and considered as an additional consideration received by them and needs to be taxed. Differential Duty on Yarn Waste - Held that - The demand raised on the undervaluation of waste of yarn cleared from the appellant s factory premises cannot be in excess - the appellant s appeal against the confirmation of demand on this point was rejected to the extent of the liability and his appeal as regards the balance amounts involved was allowed and the order was modified to that extent - There was nothing on record to come to a conclusion that the appellant had in fact received the amount of the yarn waste cleared from the factory premises - In the absence of any evidence or any statement. Penalties - Appellant was liable to be penalised under the various provisions of the Central Excise Law - the penalties was upheld on the appellant - ends of justice would meet on imposition of equivalent penalties under Section 11AC for shortage of finished and for undervaluation of goods - the appellant had not properly maintained the records as regards the finished goods and also indulged himself in undervaluing the goods and had not followed the provisions of law, hence penalty under Rule 173Q of erstwhile Central Excise Rules, 1944, read with Rule 25 of Central Excise Rules, 2002, was also leviable.
Issues Involved:
1. Demand of Rs. 66,240/- on shortage of 3000 kgs of POY. 2. Demand of Rs. 4,78,800/- on inputs i.e. polyester chips short received. 3. Demand of Rs. 3,86,476/- on waste yarn undervaluation. 4. Imposition of penalties on the appellant, managing director, and manager-cum-authorised signatory. Detailed Analysis: 1. Demand of Rs. 66,240/- on Shortage of 3000 kgs of POY: The shortage of 3000 kgs of POY was identified during a visit by officers, and the appellant contended that this was based on visual inspection without actual weighment. The appellant argued that the shortage was within permissible tolerance limits and lacked corroborative evidence of clandestine removal. The tribunal, however, held that the shortage of finished goods cannot be justified without proper reconciliation or evidence of storage losses. The tribunal upheld the demand, rejecting the appellant's defense that the shortage was negligible and within tolerance limits. 2. Demand of Rs. 4,78,800/- on Inputs i.e. Polyester Chips Short Received: The appellant admitted a shortage of 70MT of polyester chips, attributing it to weighment differences. The supplier accepted a shortage of 28MT and compensated the appellant, who reversed the cenvat credit for this amount. The remaining 42MT shortage was claimed to be within permissible tolerance limits. The tribunal found merit in the appellant's argument, citing precedents that weighment differences within tolerance limits should be ignored. The tribunal set aside the demand of Rs. 4,78,800/-, recognizing the possibility of weighment errors and the absence of evidence of diversion or misuse. 3. Demand of Rs. 3,86,476/- on Waste Yarn Undervaluation: The demand was based on entries in a private register and an approval letter indicating higher amounts received than invoiced. The appellant argued that there was no corroborative evidence, such as statements from recipients, to prove the higher amounts were actually received. The tribunal noted the existence of the private register indicating excess amounts but found no evidence supporting the claim of Rs. 10.50 per kg excess as per the letter. The tribunal partially upheld the demand, confirming Rs. 48,876/- as the duty on the excess amount indicated in the private register, while rejecting the remaining demand due to lack of evidence. 4. Imposition of Penalties: The tribunal upheld penalties on the appellant under Section 11AC and Rule 173Q/Rule 25 for the confirmed demands. The penalties were fixed at Rs. 66,240/- for the shortage of finished goods and Rs. 48,876/- for undervaluation. Additionally, a penalty of Rs. 25,000/- was imposed for non-compliance with record-keeping and undervaluation. Penalties on the managing director and manager-cum-authorised signatory were reduced proportionally to Rs. 10,000/- and Rs. 2,500/- respectively, considering the reduced duty liability. Conclusion: The tribunal upheld the demand of Rs. 66,240/- for POY shortage and Rs. 48,876/- for waste yarn undervaluation, while setting aside the demand of Rs. 4,78,800/- for polyester chips short received. Penalties were imposed accordingly, with reductions for the managing director and manager-cum-authorised signatory. The appeals were disposed of with these modifications.
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