Excise penalty on stock shortages and documentary clandestine removal distinguished: shortage-based penalty deleted, invoice-linked demand upheld.

Penalty under excise law is not attracted for stock shortages where duty on the shortages had already been paid before the show cause notice and no evidence of clandestine removal was found. For goods allegedly cleared on the basis of invoice and GR evidence, the documentary material supported unaccounted clearance, so the duty demand and equal penalty were upheld. The director's involvement was accepted, but the penalty on him was reduced as excessive. Rule 26 was not applied merely for non-appearance to summons.

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Issues: (i) whether penalty under Section 11AC of the Central Excise Act, 1944 and Rule 13 of the Cenvat Credit Rules, 2001 was sustainable in respect of shortages of inputs and finished goods detected during stock verification; (ii) whether duty demand and equal penalty were sustainable in respect of the goods alleged to have been cleared on the basis of invoice and GR evidence, and whether penalty on the director required reduction.

Issue (i): Whether penalty under Section 11AC of the Central Excise Act, 1944 and Rule 13 of the Cenvat Credit Rules, 2001 was sustainable in respect of shortages of inputs and finished goods detected during stock verification.

Analysis: The shortages were noticed on stock verification and the duty on the shortages had already been paid before issue of the show cause notice. The shortages were explained and no evidence was found to establish clandestine removal in relation to this component of the demand. In the absence of proof of deliberate evasion, the penal provisions were not attracted for the stock-shortage portion.

Conclusion: Penalty under Section 11AC of the Central Excise Act, 1944 and Rule 13 of the Cenvat Credit Rules, 2001 was not sustainable for the shortage-based demand and was set aside.

Issue (ii): Whether duty demand and equal penalty were sustainable in respect of the goods alleged to have been cleared on the basis of invoice and GR evidence, and whether penalty on the director required reduction.

Analysis: A duplicate invoice remained at the premises and the assessee failed to produce evidence showing non-delivery of goods against that invoice. A GR was also found without a corresponding invoice, and the assessee could not explain the clearance supported by that transport document. On these facts, the demand was treated as supported by material indicating clandestine removal. The director's involvement was accepted, but the penalty imposed on him was considered excessive and warranted reduction. Rule 26 was not treated as applicable merely for non-appearance to summons.

Conclusion: The duty demand of Rs. 38,568 and equal penalty under Section 11AC of the Central Excise Act, 1944 were upheld, and the penalty on the director was reduced to Rs. 10,000.

Final Conclusion: The order sustained the demand and penal consequences only for the invoice and GR-based clandestine removal component, while deleting the penalty linked to stock shortages and reducing the director's penalty.

Ratio Decidendi: Penalty under Section 11AC is not attracted for shortage-based demands when clandestine removal is not proved, but it is sustainable where documentary evidence supports unaccounted clearance and deliberate evasion.

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