2016 (2) TMI 330 - AT - Central Excise

Area based exemption - misuse of the scheme - manufacturer of menthol located in Jammu & Kathua - notification no. 56/2002-CE - Revenue contended that these units are actually manufacturing menthol flakes i.e. (terpene /menthol / DMO) only in small quantities but were showing their production in huge quantities. Thereafter, only invoices showing payment of excise duty were issued without actually manufacturing and clearing the goods. For the clearances, movements of trucks were being manipulated to show many trips thereof across the J & K border. - method adopted for taking samples. Held that - the samples were drawn on random basis and groups were made by the inspecting team without identifying any plausible reason to decide into different groups and the samples were drawn from one drum of the said group. - t the segregation of drums into different groups is totally illogical and allegation of mis declaration stands disproved. With regard to the goods contained in samples mentioned as 2H to 2S there is a mis-declaration alleged by the Revenue that M/s. Sharp has mis declared the goods. We find that M/s. Sharp has declared residue / terpene and as per the report of IIT, these goods they were found rejects. The Adjudicating authority failed to answer the questions what is the difference between residue and reject and have not analyzed the same. In these circumstances, we hold that charge of mis declaration is not sustainable. Consequently, allegation of mis declaration of goods is set aside.

Issues Involved:

1. Method of sampling for determining the contents of drums.
2. Correctness of the adjudicating authority's decision regarding certain samples being inputs procured for processing.
3. Demand of duty on goods alleged to be mis-declared.
4. Alleged clandestine removal of goods and consequent duty liability.

Issue-wise Detailed Analysis:

Issue No. a) Method of sampling for determining the contents of drums:

The Tribunal found that the method of segregating drums into groups and taking random samples was illogical and unsustainable. The sampling was done without identifying any plausible reason for the groups. The tax liability cannot be based on such random sampling. The Tribunal cited the Kerala High Court's decision in Mithu & Co., which emphasized the need for representative sampling. The Tribunal concluded that the segregation of drums into different groups was illogical, and the allegation of mis-declaration was disproved. Consequently, the demand based on mis-declaration was not sustainable.

Issue No. b) Correctness of the adjudicating authority's decision regarding certain samples being inputs procured for processing:

The adjudicating authority dropped the demand against M/s. Sharp for certain samples (1A, 16D, 16E, 2F, and 2G) based on the IIT Delhi test report, which confirmed that these were inputs procured by M/s. Sharp. The Tribunal upheld this decision, noting that the Revenue's contention that these goods were not purchased from the claimed sources was unsupported. The adjudicating authority had verified the ledger accounts and found the goods to be as declared. Thus, the Tribunal dismissed the Revenue's appeal on this ground.

Issue No. c) Demand of duty on goods alleged to be mis-declared:

For samples 1B and 1C, the Tribunal found that these goods were purchased for export and had been processed and exported under the supervision of a Central Excise officer, as confirmed by the Delhi High Court. Therefore, no duty was payable on these goods. Regarding samples 2H to 2S, the Tribunal noted that the adjudicating authority failed to distinguish between residue and rejects. The Tribunal held that the charge of mis-declaration was not sustainable and set aside the demand of duty on these goods.

Issue No. d) Alleged clandestine removal of goods and consequent duty liability:

The Tribunal addressed the claim that the goods in samples 2H-2S were manufactured before M/s. Sharp obtained Central Excise registration and were stored due to a fire incident in 1998. The Tribunal found that M/s. Sharp had not provided evidence of an insurance claim for the fire loss. The Tribunal remanded the matter to the adjudicating authority to verify the insurance documents and determine whether the goods were manufactured before obtaining Central Excise registration. The Tribunal emphasized that M/s. Sharp should be given a reasonable opportunity to defend their case.

Conclusion:

The Tribunal set aside the impugned order regarding the confiscation of goods, the demand of duty along with interest, and the imposition of penalty on M/s. Sharp. The appeal filed by the Revenue was dismissed, and the appeal filed by M/s. Sharp was allowed by way of remand for further examination of evidence related to the fire incident and insurance claim. The Tribunal directed the adjudicating authority to pass an appropriate order following the principles laid down by the Delhi High Court in the case of M/s. Flevel International.

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