2015 (5) TMI 165 - AT - Central Excise

Denial of CENVAT Credit - Clandestine removal of goods - Shortage of goods - Held that - As regards the short payment of duty demand of ₹ 3,07,354/-on the ground of amortization of the basic custom duty plus interest paid in respect of the moulds and dies, the duty demand is not disputed by the appellant, hence, the same is confirmed along with interest. However, as regards, the penalty for the short payment, the Tribunal in the case of Mark Auto Industries Ltd. Vs. Delhi-Ill 2013 (12) TMI 1027 - CESTAT NEW DELHI and Rasandhik Engineering Industries Vs. CC Delhi-III 2013 (12) TMI 1027 - CESTAT NEW DELHI where the identical issue and identical facts are involved has held that penalty would not be imposable on the vendors. Following this judgment of the Tribunal, we hold that the penalty of ₹ 3,07,354/-imposed on the appellant is not sustainable. Thus, while the duty demand of Rs, 3,07,354/- along with interest is upheld, the penalty of same amount is set aside. Just on the basis of the weight intimated by the appellants' officials and the actual availment of the component, it cannot be presumed that the appellant have inflated the consumption of raw material and have cleared the alleged excess consumption without reversal of the credit. More so, when the difference between the ascertained weight of the component and the weight indicated by the companies' officials is less than 1.5 per cent of the total raw material purchased during fast five years. Moreover, we also find that though the impugned order mentions that weight of the component is recorded in the RT -12 Returns, on going through the returns, we find that it is not so as RT -12 returns mention only the number of the different types of the components manufactured and cleared and not their weight. The duty demand of ₹ 25,14,220/- is therefore, not sustainable and has to be set aside along with penalty. Duty demand of ₹ 1,74,015/- in respect of the alleged shortage of plastic granules valued at ₹ 10.87 lakh, it is seen that this shortage has been determined on 4/2/2003 by comparing the stock of the granules actually found with the stock of granules as maintained on the computer. But it is seen that at that time, the record of the raw material maintained in the computer was only up to 31/1/2003 and therefore the stock of the raw material as on 4/2/2003 could not be compared with the stock account of the same raw material as on 31/1/2003 and for this purpose, the stock of the raw material maintained in the computer should have been updated. Since the stock of the raw material actually found as on 4/2/2003 had been compared with the stock of the same raw material maintained in the computer as on 31/3/2003, in our view, the shortage of inputs valued at ₹ 10.87 lakh cannot be said to be real shortage and hence the duty demand of ₹ 1,74,015/- has to be set aside with equivalent penalty. - Decided in favour of assessee.

Summary

Issues:
1. Duty demand on amortization of basic custom duty and interest for moulds and dies.
2. Alleged inflated raw material consumption and clearance without reversal of CENVAT Credit.
3. Alleged shortage and excess of raw materials.
4. Alleged shortage of finished products.
5. Confiscation of unaccounted finished goods.

Analysis:

1. Duty Demand on Amortization of Basic Custom Duty and Interest:
The appellant did not contest the duty demand of &8377; 3,07,354/- but argued against the imposition of penalty, citing a previous Tribunal judgment. The Tribunal upheld the duty demand but set aside the penalty based on the precedent, concluding no intention to evade duty.

2. Alleged Inflated Raw Material Consumption:
The duty demand of &8377; 25,14,220/- was challenged by the appellant regarding inflated raw material consumption. The Tribunal found insufficient evidence to support the allegation, noting discrepancies in weight records and RT-12 Returns. The duty demand was set aside along with the penalty.

3. Alleged Shortage and Excess of Raw Materials:
Regarding the alleged shortage and excess of raw materials, discrepancies in stock records were highlighted. The Tribunal observed that the shortage calculation was flawed due to outdated stock records, leading to the duty demand of &8377; 1,74,015/- being set aside with equivalent penalty.

4. Alleged Shortage of Finished Products:
The duty demand of &8377; 2,17,255/- for the shortage of finished products was upheld, and the penalty was reduced based on prior court rulings. Confiscation of unaccounted finished goods was upheld with a reduced redemption fine.

5. Confiscation of Unaccounted Finished Goods:
The confiscation of unaccounted finished goods was upheld, with a reduced redemption fine imposed. The penalty for non-accountal of finished goods and raw material was set aside.

In conclusion, the Tribunal made specific rulings on each issue, upholding some duty demands while setting aside others based on evidence and legal precedents. The appeal was disposed of with detailed considerations on each aspect of the case.