2017 (11) TMI 1094 - AT - Central Excise

Excesses of raw material/finished goods - defect in the stocktaking - clandestine removal or not - Held that - the manner of stocktaking is defective on the date of inspection. It cannot even be called a good eye estimation. Further. the stocktaking being part of the panchnama cannot be relied upon in view of the apparent defect in the panchnama for violation of the provisions of the criminal procedure code, as made applicable to the provisions of Central Excise Act, as regards search and seizure - Inspite of records oi inputs received and clearance of finished goods vide invoices. the same were ignored and not taken into account for no reason - also, there is no specific instance found inspite of all the exercise, of clandestine removal or attempted clandestine removal on the part of the appellants - appeal allowed - decided in favor of appellant.

Issues:
1. Justification of confiscation with respect to excess raw material and finished goods found during stock verification.
2. Defects in the stock verification process and panchnama drawn during inspection.
3. Allegations of clandestine activity and intention to clear goods without payment of duty.
4. Adjudication of the show cause notice confirming proposed confiscation, redemption fine, and penalties.
5. Appeal challenging the confiscation and penalties imposed by the Order-in-Original.

Issue 1: Justification of Confiscation
The Tribunal considered the discrepancy in stock found during inspection and the subsequent confiscation of excess raw material and finished goods. The Commissioner (Appeals) observed that the appellant's records were not updated beyond 24/07/2014, leading to the justification of the confiscation. The Commissioner noted that the appellant failed to maintain up-to-date records, supporting the decision of confiscation while reducing the redemption fine and penalty based on documentary evidence provided by the appellant.

Issue 2: Defects in Stock Verification
The appellant raised concerns about the defective stock verification process, arguing that the panchnama was drawn with interested witnesses and based on eye estimation rather than proper inventory. The Tribunal agreed with the appellant, finding the stocktaking process to be defective and unreliable. The Tribunal highlighted the violation of the Criminal Procedure Code in the stock verification process and criticized the selective reliance on evidence by the adjudicating authority.

Issue 3: Allegations of Clandestine Activity
The show cause notice alleged clandestine activity and malafide intentions on the part of the appellant, leading to proposed confiscation, fines, and penalties. The appellant contested these allegations, arguing that no evidence of clandestine activity was found by the revenue except for bold allegations in the notice. The Tribunal noted that the statement admitting fault was vague and lacked corroborative evidence, ultimately allowing the appeals and setting aside the impugned orders.

Issue 4: Adjudication of Show Cause Notice
The Order-in-Original confirmed the proposed confiscation, redemption fines, and penalties imposed on the appellant. The Commissioner (Appeals) upheld the confiscation but reduced the redemption fine and penalty based on the documentary evidence provided by the appellant. The appellant challenged this decision in the appeal before the Tribunal, arguing for the set aside of the confiscation and penalties.

Issue 5: Appeal Against Confiscation and Penalties
The Tribunal allowed the appeals, setting aside the impugned orders due to defects in the stock verification process and lack of evidence supporting the allegations of clandestine activity. The Tribunal found no specific instance of attempted clandestine removal by the appellant, leading to the decision to grant consequential benefits to the appellants in accordance with the law.

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