2015 (10) TMI 985 - HC - Central Excise

Clandestine removal of goods - manufacturing of carbon black - excess weight over and above weight of packing material - excess weight over and above standard excess weight - Duty demand u/s 11A - Penalty imposed under Rule 209A - tribunal observed that, matter was remanded only to ascertain the trade practice of over-filling bags in respect of carbon black, but the appellants could not bring any material to show that such a trade practice did exist in respect of carbon black. Held that - It is not the case of the respondents / revenue that the report of investigation conducted by the department with one of the purchasers, namely, M/s Modi Tyres, who confirmed that no excess amount was paid for the excess quantity, was not on record. In the Order in Original passed pursuant to the remand direction, the Adjudicating Authority could neither place any evidence nor could record any finding that any excess amount for the excess quantity of carbon black was received by the appellants. The Adjudicating Authority merely referred to certain opinions or statements that it was possible to fill the exact weight since packing process was automatic but it completely overlooked the fact that the appellants themselves had stated that they were over-filling a little quantity of carbon black in excess of the standard weight so that there may not be any complaint from the purchasers for receiving lesser quantity of carbon black which sticks with the packing bags. This factual aspect of non-receipt of any additional consideration had neither been denied nor could be disproved by the respondents. The Tribunal completely ignored its own observation recorded in para-7 of its first final order dated 19.10.2000 that where the assessment is linked to value, the realisation of the price is the same even if packed quantity is slightly more than the quantity projected then this would not have any revenue significance. - impugned Final Order of the Tribunal dated 19.10.2004 cannot be sustained and is hereby set aside. To do justice, the matter is remitted back to the Tribunal - Decided in favour of assessee.

Issues Involved:
1. Tribunal's justification in confirming the demand with reference to the weight of packing material.
2. Scope of denovo adjudication as per the Tribunal's remand order.
3. Violation of principles of natural justice due to lack of opportunity for the appellant to counter evidence.
4. Tribunal's decision regarding the weight of packing material and excess quantity of carbon black.
5. Legality of penalty imposition when no additional consideration was received for the alleged excess quantity.

Issue-wise Detailed Analysis:

1. Tribunal's Justification in Confirming the Demand with Reference to the Weight of Packing Material:
The Tribunal confirmed the demand based on the weight of the packing material, which was contested by the appellants. The appellants argued that the Tribunal's findings were incorrect as the duty liability was discharged on an ad valorem basis, and no excess amount was charged or realized for the excess quantity supplied. The Tribunal's decision was deemed unsustainable as it did not consider the nature of the trade practice of slightly over-filling carbon black bags to avoid customer complaints about short supply.

2. Scope of Denovo Adjudication as per the Tribunal's Remand Order:
The Tribunal's earlier Final Order dated 19.10.2000 remanded the matter to the Adjudicating Authority for de novo adjudication to examine the trade practice of over-filling carbon black. The Tribunal's subsequent decision was challenged on the grounds that it limited the scope of remand incorrectly. The Tribunal had upheld the findings regarding the excess quantity of carbon black but remanded the matter to examine the trade practice of over-filling. The remand was not limited, and all points were open for determination.

3. Violation of Principles of Natural Justice Due to Lack of Opportunity for the Appellant to Counter Evidence:
The appellants contended that the Adjudicating Authority violated principles of natural justice by not confronting them with the alleged inquiry reports regarding trade practices and not affording them an opportunity to rebut the evidence. The Tribunal's decision was based on these reports, which were not shared with the appellants, thus violating natural justice principles. The Tribunal failed to address this procedural lapse adequately.

4. Tribunal's Decision Regarding the Weight of Packing Material and Excess Quantity of Carbon Black:
The Tribunal confirmed the findings that the excess quantity of carbon black was not the weight of the packing material but was indeed carbon black. The appellants argued that the excess quantity included the weight of the packing material and that the precise measurement was not possible due to the nature of carbon black. The Tribunal's decision overlooked the appellants' argument that the excess quantity did not have revenue significance as the duty was on an ad valorem basis and no additional consideration was received.

5. Legality of Penalty Imposition When No Additional Consideration Was Received for the Alleged Excess Quantity:
The appellants argued that no additional consideration was received for the alleged excess quantity, and as such, no penalty could be legally imposed. The Tribunal's decision to impose penalties was challenged on the grounds that the excise duty was paid on an ad valorem basis, and the slight over-filling was a trade practice to avoid customer complaints. The Tribunal failed to consider that no evidence was presented to show that the appellants received any excess amount for the overfilled quantity.

Conclusion:
The High Court set aside the Tribunal's impugned Final Order dated 19.10.2004, remanding the matter back to the Tribunal with specific directions to:
1. Examine evidence of removal of carbon black without invoices or clandestinely.
2. Determine if any additional consideration was received for the slightly over-filled quantity.
3. Assess if central excise duty can be demanded on the slightly over-filled quantity when duty is payable on an ad valorem basis.

The appeal was allowed to the extent indicated, emphasizing the need for a thorough and fair re-examination of the issues in accordance with the principles of natural justice and relevant legal provisions.

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