2014 (7) TMI 527 - AT - Central Excise

Waiver of pre-deposit - Clandestine removal - yield ratio / burning loss - manufacturer of MS Ingots, MS Riser/Runner and Re-rolling products - Suppression of the production - Held that - raw material suppliers have not issued any test report indicating the grade of Sponge Iron supplied - in a statement, Shri Arif Ali, Manager of the Company categorically stated that the entire data, subsequent to the period, December, 2008, was incorrect. - This shows that the entire records were manipulated. - Further, Applicant has been maintaining the records, consistently showing the fixed ratio of production of MS Ingots as 72.8% during the period, 2007-08, irrespective of the ratio of the consumption of MS Scrap and the Sponge Iron, which cannot be the same, as variation is bound to happen - no specific reasons produced for low yield in case of the Applicant have been cited, except that raw materials obtained were of low yield. Applicant has not been able to make out a case for full waiver of the dues adjudged. - appellant directed to make 25% as pre-deposit - stay granted partly.

Summary

Issues: Allegations of suppression of production and clandestine clearance, reliance on input/output norms, comparison of yield percentages, financial hardship for pre-deposit.

Allegations of Suppression of Production and Clandestine Clearance:
The case involved allegations against the Applicant, a manufacturer of MS Ingots and other products, for suppressing production and clearing goods without payment of duty. The Department based its case on input/output norms, claiming excess ingots were used for duty-free products. The Applicant argued the Department lacked positive evidence for clandestine removal. The ld. Advocate cited case laws where duty evasion orders were set aside due to lack of evidence. The Tribunal noted the Department's reliance on reports showing high yield percentages, but the Applicant contended these were averages and not specific to their case. The ld. Advocate highlighted discrepancies in the yield percentages reported by the Department and the raw material suppliers, arguing the Department failed to prove suppressed production or clandestine clearance.

Reliance on Input/Output Norms:
The Revenue relied on reports indicating high yield percentages for ingots based on raw materials used, as well as input/output norms from DGFT. The ld. Advocate disputed the relevance of DGFT norms during the relevant period and pointed out discrepancies in the raw material supplier's test reports. The Tribunal observed conflicting statements regarding the accuracy of production data post-December 2008, indicating possible manipulation. The ld. Adjudicating Commissioner noted the Applicant's consistent production ratio, raising doubts about the accuracy of records. Despite the conflicting evidence, the Tribunal directed the Applicant to make a pre-deposit of 25% of the duty involved, considering the interest of the Revenue and legal principles.

Comparison of Yield Percentages:
The dispute also involved comparing the Applicant's low production with other industry outputs. The ld. Advocate argued against such comparisons, stating various factors influence production levels. The Tribunal noted the lack of specific reasons for the Applicant's low yield, except for the quality of raw materials. The Manager admitted inaccuracies in production data post-December 2008, raising doubts about the credibility of records. The Tribunal found the Applicant failed to establish a strong case for a full waiver of the dues adjudged.

Financial Hardship for Pre-Deposit:
The ld. Advocate highlighted the severe financial hardship faced by the Applicant, urging against pre-deposit. However, no concrete evidence of financial hardship was presented during the hearing. Despite the plea for leniency, the Tribunal directed the Applicant to make a pre-deposit of 25% of the duty within eight weeks to avoid dismissal of the Appeal. The balance dues would be waived, and recovery stayed during the Appeal's pendency, emphasizing the importance of compliance with the order.

This detailed analysis covers the key issues addressed in the legal judgment, highlighting the arguments presented by both parties and the Tribunal's decision based on the evidence and legal principles involved.