2018 (3) TMI 347 - AT - Central Excise

Appellant in Central Excise Dispute Faces Duty Demand, Reduced Penalty Upheld

The appellant, involved in manufacturing excisable goods, faced a central excise duty demand of Rs. 19,89,229.00. The Commissioner (Appeals) upheld a duty ... Clandestine removal - sub-contract - Held that: - In the present application for additional evidence, the appellant had not produced any documents or witnesses to be examined or affidavits and therefore such application is without any substance. The appellant in their Memo of Appeal contested the demand of ₹ 1,96,181.00. The goods were supplied by one invoice to the consignment on payment of Central Excise duty and the same Invoice no. was used showing another consignee s name where no goods were supplied and the said Invoice was used for the purpose of managing Bank Loan from the Indian Bank, Durgapur Brach, which was duly acknowledged by the Bank. Admittedly, the appellant maintained parallel Invoice so the onus lies with the assessee to establish that the second set of Invoice was not used for clearance. It cannot be shifted on the department by stating that the Officers had not enquired the matter - the appellant paid the duty before issuance of the SCN partly. So, they are entitled to avail the option to pay penalty of 25% of duty as per proviso to Section 11AC of the CEA 1944. Appeal allowed - decided in favor of appellant. Issues:- Central Excise duty demand- Cenvat Credit reversal- Demand on purchased items- Demand on parallel set of Invoices- Additional evidence applicationCentral Excise Duty Demand:The appellant, engaged in manufacturing excisable goods, faced a demand of duty amounting to Rs. 19,89,229.00 along with interest and penalty. The Adjudicating authority confirmed a portion of the Cenvat Credit and the duty demand, alleging clandestine removal of goods. The Commissioner (Appeals) set aside some demands but upheld the duty demand of Rs. 16,99,881.00, reducing the penalty amount. The appellant contested parts of the demand but did not challenge the balance amount during the hearing before the Commissioner (Appeals).Cenvat Credit Reversal:The Commissioner (Appeals) dropped the reversal of Cenvat Credit of Rs. 1,12,510.00 and Rs. 56,000.00. The appellant contested these reversals, leading to the Commissioner's decision in their favor.Demand on Purchased Items:The Commissioner (Appeals) set aside the demand of Rs. 56,000.00 and Rs. 1,20,839.00 related to the value of purchased items. However, the demand of Rs. 16,99,881.00 was upheld, and the appellant was required to pay the balance amount with interest. The penalty amount was also reduced to Rs. 16,99,881.00.Demand on Parallel Set of Invoices:The appellant maintained a parallel set of Invoices for bank loan purposes without physical movement of goods. The Commissioner found this irregularity to be in violation of Central Excise Rules, leading to a legal and proper demand confirmation by lower authorities. The appellant's attempt to shift the onus to the department due to lack of inquiry was dismissed, and the appellant was held liable to establish that the second set of Invoices was not used for clearance. However, the appellant's partial payment of duty before the Show Cause Notice entitled them to pay a reduced penalty of 25% of the duty amount.Additional Evidence Application:The appellant filed an application for additional evidence, seeking to drop the demand of duty, penalty, and interest by challenging the charge of clandestine removal. The Tribunal rejected the application, noting that no new evidence was presented and the appellant had paid the duty earlier without dispute. The application was deemed without substance as it did not comply with Rule 23 of the Tribunal's Procedure Rules.In conclusion, the Tribunal allowed the appellant to pay a reduced penalty of 25% of the entire duty amount along with interest within 30 days. The appeal was disposed of accordingly, and the application for additional evidence was also dismissed.