2015 (1) TMI 264 - AT - Central Excise

Clandestine removal of goods - physical stock - entire stock was considered only on eye estimation basis - no physical verification actually done - Penalty under Section 11AC read with Rule 25 - Held that - charges of clandestine removal are required to be established by tangible and corroborative evidence and mere confessional statement of employee is not sufficient. I also find that it is admitted fact that the respondent was not having Weigh Bridge in their factory premises. As such their contention that the raw materials/finished goods accounting was done only on eye estimation basis is to be accepted inasmuch as there was no record that the goods were taken outside the factory for weightment purposes. There is no weighment slip produced by the Revenue. No buyers stands identified by Revenue to suggest clandestine removal of their final products. Further as rightly observed by the Commissioner (Appeals) that there is no evidence of excessive consumption of electricity, flow back of funds, extra use of labour etc. As such, I find no infirmity in the order passed by the Commissioner (Appeals). - Decided against Revenue.

Summary

Issues:
Confirmation of demand of duty and imposition of penalty based on shortage of stock in the factory without physical verification.

Analysis:
The case involved a dispute regarding the confirmation of demand of duty and imposition of penalty on the respondent, who was engaged in the manufacture of sponge iron. The Central Excise Officers visited the factory and conducted checks, leading to the recording of the respondent's authorized signatory's statement admitting a shortage. Subsequently, proceedings were initiated resulting in an order confirming the demand of duty and imposing a penalty. The respondent challenged this confirmation, arguing that the stock was considered based on eye estimation without physical verification due to the absence of a weighing scale in the factory. The Commissioner (Appeals) accepted the respondent's contention, emphasizing the lack of tangible and corroborative evidence to establish clandestine removal of goods. The Commissioner noted the absence of weighment slips, identification of buyers, or evidence of excessive consumption of resources. Ultimately, the Commissioner set aside the demand, leading to the Revenue's appeal.

The appellate tribunal carefully reviewed the Commissioner's order and concurred with the decision. It emphasized the requirement for tangible and corroborative evidence to prove clandestine removal, highlighting the absence of essential documentation such as weighment slips and evidence of abnormal resource consumption. The tribunal acknowledged the respondent's limitation of not having a weigh bridge on the premises, supporting the acceptance of eye estimation for stock accounting. Additionally, the tribunal noted the lack of evidence indicating clandestine activities, such as excessive electricity consumption or unusual financial transactions. Consequently, the tribunal found no fault in the Commissioner's decision and rejected the Revenue's appeal, affirming the order set aside by the Commissioner.

In conclusion, the judgment focused on the necessity of concrete evidence to support allegations of clandestine activities, highlighting the importance of physical verification and documentation to establish charges of duty evasion. The absence of crucial evidence, coupled with the respondent's reasonable explanation for the stock discrepancy, led to the rejection of the Revenue's appeal and the upholding of the Commissioner's decision.