2007 (2) TMI 17 - AT - Central Excise

Tribunal overturns Commissioner's decision on lost batch credit denial & penalties, highlighting technological challenges.

PRISM PIGMENTS & COLOUR PVT. LTD. Versus COMMISSIONER OF C. EX., SURAT

The Tribunal allowed the appeal, setting aside the order of the Commissioner (Appeals). It found that the denial of credit for lost batches was ... Clandestine Removal – Alleged that appellant illicit removal of Alpha Blue and Beta Blue falling under Chapter 32 based on examination of purchase and consumption of raw material - After considering all factor appellant authority allow the appeal Issues:Illicit removal of Alpha Blue and Beta Blue, Demand of duty, Denial of credit, Imposition of penaltyAnalysis:The case involved a show cause notice alleging illicit removal of Alpha Blue and Beta Blue, with a demand of duty amounting to Rs.3,79,583. The charge was based on the adoption of new technology resulting in lower production and consumption of raw materials. Statements from authorized signatories were used to support the allegations. The notice demanded duty on specific quantities of Alpha Blue and Beta Blue, with a portion already paid. Additionally, credit paid on lost batches and proposed penalties were also contested.The Addl. Collector upheld the charges, confirmed the demand, and imposed a penalty of Rs.4,50,000. The Commissioner (Appeals) accepted that no duty could be demanded on the lost batches but upheld the charge of removal of finished goods based on input-output ratio and increased production. The denial of credit and penalties were also upheld, leading to the appeal.Upon hearing both sides, the Tribunal found that the denial of credit for the lost batches could not be upheld as it is established that the inputs were used for manufacturing. The Tribunal also noted that the installation of new technology does not immediately result in optimum production, as evidenced by the loss of raw material in failed batches. The Tribunal referenced a previous case to emphasize that assumptions about production cannot be relied upon.Regarding the onus of proving clandestine removal, the Tribunal found no material to support such large unaccounted production. Citing precedents, the Tribunal set aside the duty demand and penalty, concluding that without upholding the credit denial and duty demands, there is no basis for penalties. As a result, no interest recovery under Section 11AB was warranted due to the absence of a duty amount determination. The appeal was allowed, and the order of the Commissioner (Appeals) was set aside.