2015 (4) TMI 69 - AT - Central Excise

Court Upholds Duty, Interest, and Penalty on Zinc Scrap Shortage; Other Demands Set Aside

The court upheld the demand of duty, interest, and penalty on the shortage of 5.867MT Zinc Scrap but set aside all other demands of duties, confiscation, ... 100% EOU - whether demand of Central Excise duty alongwith interest and penalty and confiscation of the quantity of 31.537MT of Aluminium ingots and 64.902MT of finished goods cleared by the assessee to M/s. Sai Flipped Coil Pvt. Limited and M/s. Vitrag Impex, respectively, manufactured out of duty free raw materials are sustainable - Held that:- Assessee obtained permission from the Central Excise authorities to supply the goods to M/s. Sai Flipped Coil Pvt. Limited. As per sale contract, the goods were delivered on FOB Rajkot. The said Company also admitted receipt of the goods. In any event, it is the responsibility of the advance license holder to fulfil the conditions. It is significant to note that advance license holder has provided EODC certifying discharge of export obligation under the advance license. Similarly, the supplies made to M/s. Vitrag Impex in DTA against receipt of foreign exchange. The appellants sought for permission for sale in DTA from the Development Commissioner based on the purchase order placed on the appellant by M/s. Reza Overseas Metal Trading of UAE for delivery of goods to M/s. Vitrag Impex. It is important to note that the said sale was made on full payment of duty. No justification to raise demand of Central Excise duty on the goods supplied to the said Companies. So, the demand of Central Excise duty alongwith interest and confiscation of goods and imposition of redemption fine in respect of supply of materials to the said two parties are not sustainable. Demand of duty alongwith interest and imposition of penalty as well as confiscation and imposition of redemption fine on the raw materials and the finished goods except shortage of 5.867MTs of Zinc Scrap, on the assessee, are not sustainable. The learned Advocate had not seriously disputed the demand of duty on 5.867MTs Zinc Scrap. It is seen from the adjudication order that, it was admitted that the goods were cleared clandestinely and therefore, penalty under Section 11AC of the Act, 1944 is justified. But, the goods were not available for confiscation and, confiscation of goods and imposition of fine was not proper and legal. As the demand of duty and confiscation of goods are not sustainable, imposition of penalties on the appellants are not warranted. Impugned order is modified to the extent the demand of duty alongwith interest and imposition of penalty of equal amount of duty as determined on 5.867MT Zinc Scrap found short as per Panchnama dated 27/ 28.04.2005 are upheld, and all other demand of duties along with interest, confiscation and imposition of fine and penalties are set-aside. As the adjudicating authority had not given an option to pay penalty of 25% of the duty, within thirty days along with duty and interest from the date of receipt of adjudication order as per Section 11AC (i) of the Act, the assessee is given an option, to pay the penalty 25% of the duty alongwith duty and interest on 5.867MT of Zinc scrap, within thirty days from the date of receipt of this order. Failure to which, the assessee shall pay the penalty of equal amount of duty as determined. - Decided partly in favour of assessees. Issues Involved:1. Demand of Central Excise duty along with interest and penalty on finished goods cleared to M/s. Sai Flipped Coil Pvt. Limited and M/s. Vitrag Impex.2. Demand of Customs duty on imported raw materials used in the manufacture of finished goods.3. Confiscation of goods and imposition of redemption fines.4. Imposition of penalties on the assessee and other appellants.Issue-wise Detailed Analysis:1. Demand of Central Excise Duty along with Interest and Penalty on Finished Goods Cleared to M/s. Sai Flipped Coil Pvt. Limited and M/s. Vitrag Impex:The adjudicating authority observed that the owners of the vehicles denied transporting the goods shown in the relevant invoices, and in some cases, the vehicles were not capable of transporting the goods. Statements from partners and managers of the involved companies indicated that the goods were not received as per the invoices issued by the assessee. The assessee argued that they supplied goods to M/s. Sai Flipped Coil Pvt. Limited as per Para 4.1.11 of the Foreign Trade Policy with permission from Central Excise authorities. They also supplied goods to M/s. Vitrag Impex against foreign exchange payments as per Para 6.9(b) of the Policy. The assessee produced various documents, including invoices and payment particulars, to support their claims. The court found that the documents were genuine and the demand of Central Excise duty along with interest and penalty on the goods supplied to these companies was not sustainable.2. Demand of Customs Duty on Imported Raw Materials Used in the Manufacture of Finished Goods:The adjudicating authority confirmed the demand of Customs duty on the raw materials used in the manufacture of finished goods, which were allegedly diverted into the local market. The assessee argued that the raw materials were used in the finished goods, and since the demand of Central Excise duty on the finished goods was raised, the demand of Customs duty on the raw materials was not sustainable. The court agreed with the assessee, citing previous judgments that duty on raw materials is not demandable if the finished goods are cleared in the local market. Thus, the demand of Customs duty along with interest and confiscation of the raw materials was not warranted.3. Confiscation of Goods and Imposition of Redemption Fines:The adjudicating authority imposed redemption fines on the confiscated raw materials and finished goods. The court found that the demand of duty on the finished goods supplied to M/s. Sai Flipped Coil Pvt. Limited and M/s. Vitrag Impex was not sustainable, and therefore, the confiscation of goods and imposition of redemption fines were also not justified. However, for the shortage of 5.867MT Zinc Scrap, the court upheld the demand of duty and penalty but ruled that confiscation and redemption fines were not proper since the goods were not available for confiscation.4. Imposition of Penalties on the Assessee and Other Appellants:Penalties were imposed on the partners of the assessee and other appellants under Rule 26 of the Central Excise Rules, 2002, and Section 112(b) of the Customs Act, 1962. Given that the demand of duty and confiscation of goods were not sustainable, the court ruled that the imposition of penalties on the appellants was also not warranted. The penalties related to the shortage of 5.867MT Zinc Scrap were upheld, but the court provided an option to the assessee to pay a reduced penalty within thirty days.Conclusion:The court modified the impugned order, upholding the demand of duty along with interest and penalty on the shortage of 5.867MT Zinc Scrap, while setting aside all other demands of duties, confiscation, fines, and penalties. The appeal filed by M/s. Asia Metals was disposed of in these terms, and appeals by other appellants were allowed.