2009 (6) TMI 842 - AT - Central Excise

Demand and penalty - Clandestine removal - Held that - the assessee failed to furnish reasons for shortage. There is no material available of clandestine removal of the goods. So imposition of penalty under Section 11AC of the Act is not justified - demand set aside - appeal allowed - decided in favor of appellant.

Summary

The Appellate Tribunal CESTAT, New Delhi, in the case of Shri P.K. Das, represented by Shri Atul Gupta, Chartered Accountant, for the Appellant, and Shri S.N. Srivastava, DR, for the Respondent, reviewed a case involving a shortage of raw materials in a PVC pipe manufacturing plant. Central Excise Officers discovered a shortage of raw materials during a stock verification, resulting in a demand for excise duty of Rs. 61,600. The Original Authority confirmed the demand and imposed a penalty equal to the duty under Section 11AC of the Central Excise Act, 1944. The Commissioner (Appeals) reduced the penalty to Rs. 15,000. The assessee appealed against this order, while the Revenue appealed for the penalty to be equal to the duty amount.

Upon review, the Tribunal found that the shortage of inputs was detected during stock verification, with no shortage of finished goods recorded. The Director of the assessee accepted the shortage but failed to provide reasons for it. The Revenue argued that the lack of explanation for the shortage implied clandestine clearance of goods. The assessee's advocate cited a precedent from the Hon'ble Punjab & Haryana High Court, highlighting that payment of duty before a show cause notice does not preclude penalty imposition under Section 11AC, provided the necessary elements, including mens rea, are present.

The Tribunal noted that the assessee's failure to provide reasons for the shortage did not justify imposing a penalty under Section 11AC, as there was no evidence of clandestine removal. Consequently, the demand for duty was upheld, while the penalty was set aside. The appeal by the assessee was thus disposed of in these terms, with the Revenue's appeal being rejected. The order was dictated and pronounced in open court on 12-6-2009.