2021 (7) TMI 327 - AT - Central Excise

Clandestine Removal - M.S. Billets - pig iron - difference in the declared stock and physical stock beyond tolerance limit - corroborative evidence to allege that the apparent shortage is due to clandestine removal, present or not - HELD THAT - The method of stock verification adopted by the Revenue in this case (during inspection) is not correct and free from error. Further, such stock taking is not provided under the scheme of the Central Excise Act read with the Rules. Further, it is found that the appellant has given cogent explanation for the apparent shortage, which has not been found wrong by the court below. Further, such apparent shortage is less than 1% in case of M.S. Billets and about 3% in case of Pig Iron, which is within the tolerance limit in this type of industry - Save and Except the bald allegation made by the Revenue of clandestine removal, there is no other allegation in the show cause notice as regards the quantitative mismatch of input output ratio, etc. Hon ble High Courts and this Tribunal have repeatedly held that insignificant shortage in the stock of raw materials and finished goods does not lead inevitable evidence of clandestine removal, in absence of corroborative material on record. Appeal allowed - decided in favor of appellant.

Issues Involved:

1. Method of stock verification and its accuracy.
2. Allegation of clandestine removal of goods.
3. Admissibility of the explanation provided by the appellant for the shortage.
4. Legal validity of the demand and penalty imposed by the Commissioner (Appeals).

Issue-wise Detailed Analysis:

1. Method of Stock Verification and its Accuracy:

The appellant, Jai Balaji Industries Ltd., was subjected to a stock verification process during an inspection on 9.6.2016. The officers, with the help of a surveyor, conducted a physical verification of the stock, which revealed discrepancies between the declared stock and the physically verified stock for M.S. Billets and Pig Iron. The method used for stock verification was the volumetric method, which involved estimating the height of the heap of products and calculating the quantity based on statistical methods. The appellant argued that this method is not error-free and does not provide exact quantities, leading to apparent discrepancies.

2. Allegation of Clandestine Removal of Goods:

The Revenue alleged that the appellant was indulging in unaccounted production and clandestine removal of finished goods without payment of duty, based on the shortages found during the stock verification. However, the Asstt. Commissioner, in the order-in-original dated 16.01.2018, observed that the method of physical verification was not accurate and there was no corroborative evidence to support the allegation of clandestine removal. The Commissioner (Appeals) differed, stating that the shortage was admitted and unexplained, thus confirming the demand and penalty.

3. Admissibility of the Explanation Provided by the Appellant for the Shortage:

The appellant provided several explanations for the apparent shortage, including the absence of the staff responsible for making entries in the computer, the negligible fraction of the shortage compared to the annual production, and the normal loss in the manufacturing process. The appellant also maintained that the shortage was within tolerance limits and attributed to factors such as the condition of plant and machinery, quality of raw materials, and weather conditions. The Asstt. Commissioner accepted these explanations, but the Commissioner (Appeals) did not.

4. Legal Validity of the Demand and Penalty Imposed by the Commissioner (Appeals):

The appellant contested the demand and penalty imposed by the Commissioner (Appeals), arguing that the observations and findings of the Asstt. Commissioner were correct and that there was no material evidence of clandestine removal. The Tribunal found that the method of stock verification adopted by the Revenue was not correct and free from error, and that the appellant's explanation for the apparent shortage was cogent and not disproven. The Tribunal also held that the insignificant shortage in stock does not lead to inevitable evidence of clandestine removal in the absence of corroborative material.

Conclusion:

The Tribunal allowed the appeal, set aside the impugned order-in-appeal, and restored the order-in-original. The appellant was entitled to consequential benefits in accordance with the law. The Tribunal emphasized that the method of stock verification used by the Revenue was flawed and that the explanations provided by the appellant for the apparent shortage were reasonable and within tolerance limits. The demand and penalty imposed by the Commissioner (Appeals) were deemed unjustified in the absence of corroborative evidence of clandestine removal.

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