2017 (11) TMI 702 - AT - Central Excise

Clandestine removal - shortage of ingots - determination of weight by eye estimation and not by actual weightment - burden of prove - Held that - invoices with same numbers such are Invoice No.26 was issued on various dated such as 01.11.2011, 02.11.2011, 03.11.2011, 04.11.2011, 05.11.2011 and 06.11.2011 indicating various quantities of ingots cleared and similar situation was in Invoice No.27 or Invoice No.28 etc. Further, in the invoice book mentioned at Serial No.8 of Annexure A, Invoice No.3 was issued several times - No convincing defence was put forth against issue of number of invoices with the same number on various occasion to different purchases containing different information about the quantity of ingots cleared - appeal dismissed - decided against appellant.

Summary

Issues: Alleged evasion of Central Excise Duty through clandestine removal of finished goods, imposition of personal penalty, appeal against Order-in-Appeal No.394-395-CE/APPL-LKO/LKO/2015.

Alleged Evasion of Central Excise Duty:
The case involved M/s Mamta Steel India Pvt. Ltd being accused of engaging in the clandestine removal of finished goods to evade Central Excise Duty. Central Excise Officers found a shortage of MS Ingots during a visit to M/s Mamta's manufacturing unit, leading to the issuance of a show cause notice alleging uncounted raw materials, suppression of production, and clandestine removal of finished goods through forged invoices. The show cause notice proposed demanding Central Excise Duty on the shortages of MS Ingots and on finished goods removed clandestinely. The Order-in-Original confirmed the demands and imposed penalties on M/s Mamta and another appellant. The Commissioner (Appeals) upheld the order, stating that the Department had proven clandestine clearance by discovering forged and parallel invoice books. The Tribunal dismissed the appeals, noting inconsistencies in the issued invoices and lack of convincing defense against the allegations.

Imposition of Personal Penalty:
The show cause notice also proposed imposing a personal penalty on the other appellant, Shri Lal Padmakar Singh, under Rule 26 of the Central Excise Rules, 2002. The Original Authority confirmed the penalty, which was upheld by the Commissioner (Appeals). The Tribunal did not interfere with this aspect of the order, leading to the dismissal of the appeals.

Appeal Against Order-in-Appeal:
Both the appeals were filed before the Tribunal challenging the Order-in-Appeal passed by the Commissioner (Appeals). The appellants argued various points, including the method of determining the weight of MS Ingots and discrepancies in the issued invoices. However, the Tribunal, after considering the rival contentions and perusing the records, found no infirmity in the Commissioner (Appeals)'s order. The Tribunal declined to interfere with the Order-in-Appeal and dismissed both appeals, upholding the decision regarding the alleged evasion of Central Excise Duty and the imposition of penalties.

This detailed analysis of the legal judgment highlights the issues of alleged evasion of Central Excise Duty, imposition of personal penalty, and the appeal against the Order-in-Appeal, providing a comprehensive overview of the case and its adjudication process.