2014 (9) TMI 636 - AT - Central Excise

Clandestine removal of goods - Seizure of Grey Cotton Fabrics during interception of vehicle from the transporter removed without valid duty paying documents and duty - Held that - The very fact that the when the goods were intercepted from the transporter there is no valid duty paying documents and this proves beyond doubt that the goods were clandestinely removed without payment of duty. The appellant failed to justify the invoice No.59 dt. 24.2.2004 which relates to the goods intercepted by the officers. As clearly held by the lower authorities, when all the invoices clearly mentioned the date and time of removal, except few invoices including invoice No.59 dt. 24.2.2004 which did not indicate at the time of removal clearly shows malafide intention on the part of the appellant for using the same invoice for multiple clearance. Since Commissioner (Appeals) has already taken the shortage quantity noticed in the factory premises and the seized quantity together and re-determined duty demand only on balance quantity, confiscation and the revised duty demand of duty and imposition of redemption fine is justified and liable to be upheld. appellant is eligible for the reduced penalty of 25% as per Section 11AC of the Central Excise Act - Decided partly in favour of assessee.

Summary

Issues:
- Appeal against Commissioner (Appeals) order dated 18.8.2005
- Clandestine removal of Grey Cotton Fabrics without duty payment
- Confiscation, demand of duty, penalty under Section 11AC of Central Excise Act, 1944
- Appropriate penalty reduction for revised duty amount
- Justification of reduced penalty and redemption fine
- Benefit of 25% reduced penalty under Section 11AC for appellant

Analysis:

1. The appellant filed an appeal against the Commissioner (Appeals) order dated 18.8.2005 regarding the seizure of Grey Cotton Fabrics due to clandestine removal without valid duty paying documents and non-payment of Central Excise duty. The adjudicating authority confirmed the duty demand, imposed penalty under Section 11AC, and confiscated a portion of the seized fabrics. The appellant contested the department's claims, citing lack of conclusive evidence and double payment of duty. The appellant presented documents supporting reduced duty liability, which the Asst. Commissioner acknowledged, leading to a reduction in duty and penalty.

2. The lower appellate authority held that the shortage of fabrics at the factory included the seized quantity, justifying the confiscation of the seized goods and directing re-quantification of duty liability. The appellant argued against the department's findings, emphasizing the duty payment for the seized goods and the alleged double payment. The department countered, presenting evidence of clandestine removal, shortage discrepancies, and admissions by the appellant's partner. The authority reduced the duty liability and penalty based on the revised quantity, leading to a reduced penalty amount.

3. The duty liability was reduced to &8377; 18,328, and the penalty was also reduced to the same amount. The absence of valid duty paying documents during interception indicated clandestine removal. The appellant's failure to justify the invoice used for clearance raised suspicions of malafide intentions. The Commissioner's decision to re-determine duty demand based on the balance quantity, considering seized and shortage quantities, was deemed justified. The appellant's claim for a 25% reduction in penalty was acknowledged due to the excess cash deposit already made, resulting in a reduced penalty amount.

4. The appellant's contention for a reduced penalty under Section 11AC was upheld, given the appropriation of duty demand and redemption fine from the cash deposit. The revised duty amount, penalty, and redemption fine, when considered together, were less than the initial cash deposit, warranting the appellant's eligibility for the reduced penalty. The order confirmed the revised duty amount and redemption fine but reduced the penalty by 25% as per Section 11AC of the Central Excise Act. The appeal was disposed of accordingly, with the reduced penalty amount upheld.

5. The judgment, pronounced on 01.09.2014, resolved the issues raised by the appellant against the Commissioner (Appeals) order, addressing the clandestine removal, duty liability, penalty reduction, and appropriateness of the revised duty and penalty amounts.