2013 (11) TMI 1083 - AT - Central Excise

Tribunal grants waiver, doubts duty demand, rules in favor of appellant.

The Tribunal granted total waiver of duty and penalty to the appellant, staying the recovery process during the appeal. The discrepancies in oxygen ... Difference in figures of Consumption - Clandestine Removal of Goods – Waiver of Pre-deposit – Held that:- The difference in the figures of consumption was considered as the quantity of oxygen removed clandestinely without payment of duty - the claim of the applicant that there was an error in page 429 and correct figure of consumption is reflected at page 369 of the Report which tallies with the daily production report and quantity shown in RT-12 Return - There is force in the submission of the applicant that the difference in figures on consumption of oxygen, as shown in page 369 and page 429, apparently cannot be considered as removal without payment of duty, in absence of other corroborative evidence – Prima facie the applicant is able to make out a case for total waiver of dues - all dues as pre-deposit waived and its recovery stayed during the pendency of the appeal – stay granted. Issues: Application for waiver of pre-deposit of duty and penalty under Section 11AC of CEA, 1944.Analysis:1. The appellant, engaged in manufacturing Iron and Steel products, sought waiver of pre-deposit of duty and penalty imposed under Section 11AC of CEA, 1944. The Revenue alleged clandestine removal of oxygen gas based on discrepancies in the consumption figures between the Annual Statistical Report and RT-12 Return.2. The appellant contended that the figures in the Annual Statistical Report were incorrect due to different departments preparing the report. They argued that the correct consumption figure was reflected in page 369 of the report, which aligned with the daily production report and RT-12 Return. The appellant cited a Tribunal judgment to support their claim.3. The Revenue argued that the figures in page 429 of the Annual Statistical Report were accurate and supported the demand for duty payment based on private records. They referenced a judgment of the Hon'ble Allahabad Court in a similar case to justify their position.4. In response, the appellant distinguished the referenced judgment, stating it pertained to a different scenario involving recovery of private records during a search and seizure operation, unlike the present case.5. Upon review, the Tribunal found merit in the appellant's argument that discrepancies in oxygen consumption figures did not conclusively prove clandestine removal. The correct consumption figure in page 369, consistent with other reports, raised doubts on the demand for duty payment. The Tribunal acknowledged the appellant's explanations for the discrepancies and granted total waiver of all dues, staying the recovery during the appeal process.