2019 (7) TMI 114 - AT - Central Excise

Appeal allowed in case of improper accounting & goods clearance, penalties reconsidered.

M/s. Emkaay Engineering Works and M/s. R. Chinniah, Proprietor Versus Commissioner of Central Excise

The appeal challenging the findings and penalties imposed on M/s. Emkaay Engineering Works for improper accounting and clearance of goods without payment ... Clandestine manufacture and removal - difference in quantity of goods as shown cleared in ER-1 returns and the balance sheet - HELD THAT:- Ld. counsel for the appellant has adverted to the additional reply filed by them to argue that they are doing trading activity also and the goods manufactured on job work basis were sold by them. However, the details with regard to the break-up of goods manufactured on job work basis and sold by them is not available from the records. Since these details are not reflected from the records and also taking note of the fact that order-in-original was passed before the additional reply could be filed by appellants, the matter requires to be remanded to the original authority for reconsideration of this issue. Appeal allowed by way of remand. Issues:1. Allegations of improper accounting and clearance of goods without payment of duty.2. Discrepancies observed in the operations of M/s. Emkaay Engineering Works.3. Show cause notice issued proposing demands and penalties.4. Confirmation of demands, interest, and penalties by the original authority and Commissioner (Appeals).5. Appeal challenging the findings and penalties imposed.Analysis:Issue 1: Allegations of Improper Accounting and Clearance of GoodsThe case involved allegations against M/s. Emkaay Engineering Works for not properly accounting their production and clearing goods without paying duty. The officers visited the premises based on gathered intelligence and found discrepancies in their operations, including purchasing raw materials, availing Cenvat credit, clearing goods without issuing Excise Invoices, and discrepancies in quantity shown in ER-1 Return & Balance Sheet.Issue 2: Discrepancies ObservedThe discrepancies observed included clearing finished goods without proper documentation and payment of excise duty, receiving fabrication steel for manufacturing excisable goods without paying central Excise Duty, and clearing goods without issuing excise invoices. These discrepancies led to a show cause notice proposing demands and penalties against M/s. Emkaay Engineering Works.Issue 3: Show Cause Notice and PenaltiesAfter due process, the original authority confirmed the demands, interest, and imposed penalties under Section 11AC of the Central Excise Act, 1944. Additionally, a penalty was imposed on the proprietor of the firm under Rule 26 of Central Excise Rules, 2002. The Commissioner (Appeals) upheld these decisions, leading to an appeal challenging the same.Issue 4: Confirmation of Demands and PenaltiesThe appellant accepted liability for certain issues raised in the show cause notice. However, a contest arose regarding the difference in quantity of goods declared in ER-1 returns and the balance sheet. The appellant argued that this difference was due to goods manufactured on job work basis, which were not liable for duty. The matter was remanded to the original authority for reconsideration due to lack of detailed records and the timing of the order-in-original.Issue 5: Appeal and RemandThe appeal was allowed by way of remand to the original authority for further consideration. The imposition of equal penalty on the proprietor was deemed unwarranted when a penalty was already imposed on the firm. The adjudicating authority was directed to reassess the penalties, taking into account the reduced penalty provision under Section 11AC of the Act.