2019 (6) TMI 376 - AT - Central Excise

Clandestine removal - shortage of material - case of appellant is that shortage of the goods is due to various reasons such as Slippage during rain, loading-unloading of the goods - Penalty - HELD THAT - The dispute is only on shortages found during the physical stock carried out by the preventive Officers of the Department. Neither there is any investigation regarding clandestine removal nor any charge was made, therefore, it cannot be said that there is a clandestine removal. Penalty - HELD THAT - The shortage of the goods have been admitted by the appellant, accordingly, they have paid the duty. Since there is no evidence of clandestine removal, penalty under Section 11AC cannot be imposed - Moreover, the demand is for the normal period and no extended period was invoked, therefore, the penalty imposed under Section 11AC and consequential penalty on the individuals are set aside. Redemption fine - HELD THAT - It is an admitted fact that due to shortage of the goods, the goods were not available, the goods which are not available cannot be confiscated and consequentially no redemption fine can be imposed. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Duty demand on short found material
2. Penalty imposition under various sections
3. Confiscation of goods and redemption fine
4. Appeal against penalties imposed on individuals

Analysis:
1. The case involved a manufacturer of excisable goods where shortages of raw materials were found during a stock taking by the Preventive Daman office. A show cause notice (SCN) was issued proposing duty demand, penalties, and confiscation of goods. The adjudication order confirmed the duty demand, imposed penalties, and ordered for confiscation and redemption fine. The penalties were also imposed on individuals. The appellant appealed the order before the Commissioner (Appeals).

2. The appellant argued that the shortages were not due to clandestine removal but reasons like slippage during rain and loading-unloading. They contended that since they paid duty on the shortages and there was no evidence of clandestine removal, the penalty under Section 11AC should not have been imposed. The appellant challenged the penalties on individuals and the redemption fine, citing a Tribunal decision in a similar case.

3. The Revenue, represented by the Assistant Commissioner, maintained that the shortages implied clandestine removal, justifying the penalty under Section 11AC. The AR reiterated the findings of the impugned order, emphasizing the appellant's failure to explain the shortages.

4. After hearing both sides and examining the records, the Member (Judicial) found that the dispute centered on shortages identified during stock taking, with no evidence of clandestine removal. As the appellant admitted the shortages and paid duty, the absence of proof for clandestine removal led to the setting aside of the penalty under Section 11AC. The Member relied on a Tribunal decision with similar facts to support this conclusion. Additionally, since the goods were not available due to shortages, confiscation and redemption fine were deemed inappropriate, following a precedent set by a Larger Bench of the Tribunal. Consequently, all appeals were allowed, overturning the penalties imposed.

This detailed analysis highlights the key issues of duty demand, penalty imposition, confiscation, and redemption fine, providing a comprehensive view of the judgment delivered by the Appellate Tribunal CESTAT Ahmedabad.