2006 (8) TMI 339 - AT - Central Excise

Appellate tribunal rules in favor of appellants, citing lack of evidence for alleged shortages and clandestine removal.

The appellate tribunal overturned the demand, penalty, and confiscation related to alleged shortages in final products, noting the lack of concrete ... Demand - Shortages - Processing loss - Confiscation of goods - Excess goods Issues involved:Alleged shortages in final products, confiscation of goods, demand of duty, penalty imposition, clandestine removal allegations.Analysis:Alleged shortages in final products:The case revolved around discrepancies found during a visit by Central Excise Officers to the factory, where unaccounted final products and shortages in scrap were noted. The manufacturer contested the basis of the show cause notice, arguing that shortages were due to processing loss and not clandestine removal. The adjudicating authority upheld the demand, penalty, and confiscation. However, the appellate tribunal found the revenue's case solely based on theoretical calculations, lacking concrete evidence. The tribunal noted the shortages over a three-year period were likely due to processing loss, emphasizing the lack of effort to determine normal processing loss. Consequently, the tribunal set aside the demand related to alleged shortages.Confiscation of goods and duty demand:Regarding the confiscation of excess goods, the tribunal agreed with the appellants that there was no evidence of intended clandestine removal, thus overturning the confiscation. The goods, still in the factory, were deemed not liable for confiscation without proof of intended removal. The tribunal also dismissed the duty demand for the excess goods, stating they should be cleared on payment of duty if not already done. Similarly, shortages of scraps, involving a duty amount, were not deemed sufficient grounds for alleging clearance without duty payment, leading to the dismissal of the demand on that basis.Penalty imposition and clandestine removal allegations:The tribunal concluded that no penalty should be imposed on the appellants, highlighting the lack of evidence supporting clandestine removal allegations. Emphasizing the need for concrete evidence to establish clandestine activities, the tribunal found no justification for confirming the duty demand related to shortages. Ultimately, the appeal was allowed, providing consequential relief to the appellants.In summary, the appellate tribunal's judgment focused on the lack of concrete evidence supporting the revenue's allegations, emphasizing the need for proof beyond theoretical calculations. The tribunal overturned the duty demands, confiscation of goods, and penalty imposition, highlighting the absence of evidence of clandestine activities and attributing shortages to processing loss.