2014 (8) TMI 748 - AT - Central Excise

Clandestine removal of goods - Suppression of production - process loss of about 21% not been satisfactorily explained by the appellant - Held that - Appellant has led a number of evidences by way of SION, expert s opinion etc. to show that process loss to the extent of 14 to 15% is normal in the case of Phenolic Resin manufactured from Gum Rosins. They have also cited the case laws of Oudh Sugar Mills 1962 (3) TMI 75 - SUPREME COURT OF INDIA , Phosphate Company Ltd. 1994 (10) TMI 189 - CEGAT, CALCUTTA and Padmanabh Dyeing, etc 1996 (8) TMI 298 - CEGAT, MUMBAI , wherein also similar issue had come up for consideration and the Apex Court and this Tribunal took a view that the production cannot be worked out on the basis of formula and in the absence of tangible evidence showing clandestine removal, duty demand cannot be confirmed. Following the ratio of these decisions, which are applicable to the facts of the present case, the appellant has made out a strong case for grant of stay. Accordingly, we grant unconditional waiver from pre-deposit of dues adjudged against the appellant and stay recovery thereof during the pendency of the appeal - Stay granted.

Summary

Issues:
- Duty demand confirmation based on process loss explanation
- Appellant's contention on process loss and expert opinions
- Lack of evidence of duty evasion by the Revenue
- Pre-deposit orders and evidences presented by the appellant
- Legal precedents supporting appellant's case

Duty Demand Confirmation Based on Process Loss Explanation:
The judgment involves appeals and stay petitions against an order confirming duty demands of significant amounts along with penalties. The lower appellate authority upheld the demands due to a process loss of about 21%, which the appellant failed to explain satisfactorily, leading to the presumption of goods being clandestinely removed. The appellant challenged this decision before the tribunal.

Appellant's Contention on Process Loss and Expert Opinions:
The appellant, a manufacturer of phenolic resins, argued that process loss is inherent in their manufacturing process due to variations in raw materials and finished goods' purity requirements. They provided evidence, including SION norms and expert opinions, to support that process losses ranging from 14% to 17% are normal in such manufacturing activities. The appellant emphasized that the department's verification and expert opinions corroborated the reasonableness of the process losses claimed.

Lack of Evidence of Duty Evasion by the Revenue:
The appellant highlighted the absence of concrete evidence from the Revenue to prove that goods were cleared without duty payment. They relied on legal precedents, such as the Oudh Sugar Mills case, emphasizing that duty evasion allegations require tangible evidence and cannot be solely based on calculations or machinery observations. The appellant argued that without direct evidence, duty demands cannot be sustained.

Pre-Deposit Orders and Evidences Presented by the Appellant:
During the litigation process, the tribunal had previously ordered pre-deposits by the appellant, which were partially fulfilled. The appellant submitted various evidences, including SION norms, expert opinions, and legal precedents, to demonstrate the reasonableness of their claimed process losses and to challenge the duty demands based on lack of concrete evidence of duty evasion.

Legal Precedents Supporting Appellant's Case:
The tribunal, considering the appellant's arguments, found merit in their contentions based on legal precedents like the Oudh Sugar Mills case and decisions by the tribunal in similar matters. Citing these precedents, the tribunal granted an unconditional waiver from further pre-deposits and stayed the recovery of dues during the appeal process, acknowledging the appellant's strong case supported by expert opinions and legal principles.