2019 (2) TMI 857 - AT - Central Excise

Clandestine removal - adjustment of shortages and excesses of different products - Short paid duty - motor spirit (petrol) - High Spirit Diesel (HSD) - Furnace Oil (FO) - Super Kerosene Oil (SKO) - the quantity dispatched was more than the quantity received - Held that - The said issue has been decided by Tribunal in the appellant s own case in identical circumstances M/S. INDIAN OIL CORPORATION LTD VERSUS C.C.E. & S.T. -VADODARA-I 2018 (10) TMI 468 - CESTAT AHMEDABAD , where it was held that It is clear from that the direction was to reconcile excess and shortages against each other and if still there is shortage then the same needs to be charged to duty at highest rate in term of Clause (h) of the circular, after adjusting for permitted losses. The matter is remanded to the original adjudicating authority for fresh decision following the aforesaid decision of the Tribunal in appellant s own case - appeal allowed by way of remand.

Summary

Issues:
Central Excise duty demand on quantity dispatched, adjustment of excesses against shortages, duty liability for clearances, reconciliation of excess and shortages.

Analysis:

1. The appellant, engaged in manufacturing various products like petrol, HSD, FO, and SKO, cleared goods through pipelines using the dip rod method for quantity ascertainment. Central Excise duty demand was made on the quantity dispatched for the mentioned products, ignoring consignments where excess duty was paid due to lower dispatch quantity. An amount was paid by the appellant before the show cause notice (SCN) was issued, but the impugned order did not consider all clearances.

2. The appellant's counsel argued that discrepancies in quantity received at the recipient end could occur due to the inaccuracies of the dip rod method and the impact of temperature on liquid products. He emphasized the need for adjusting excesses against shortages before imposing duty liability, citing relevant case laws and a previous decision in the appellant's favor.

3. The appellant's counsel also relied on a previous decision dated 05.10.2018 in their own case to support their argument for reconciliation of excess and shortages before determining duty liability.

4. The respondent's argument supported the impugned order, stating that duty should be discharged based on the quantity cleared by the appellant without any provision for adjusting excess duty paid against shortages in different clearances.

5. The Tribunal, after reviewing the submissions, referred to a previous decision in the appellant's case involving a similar scenario. The Tribunal observed discrepancies in the product dispatch and receipt at the warehouse, noting intermixing of products and the need for reconciliation of excesses and shortages as per prescribed procedures.

6. Based on the previous decision and the similar circumstances in the instant case, the Tribunal set aside the impugned order and remanded the matter to the original adjudicating authority for a fresh decision following the guidelines for reconciling excesses and shortages as per the Tribunal's direction in the appellant's own case.

This detailed analysis of the judgment highlights the issues involved, arguments presented by both parties, relevant case laws cited, and the Tribunal's decision to remand the matter for a fresh decision based on the principles of reconciling excesses and shortages before determining duty liability.