2011 (4) TMI 633 - AT - Central Excise

Demand of duty - Shortage of raw tobacco as compared to the stock available as per records - The explanation given by the directors of the respondent-company was that the same was attributable to dryness of raw tobacco and wastage and manufacturing loss over a period of time - The explanation given by the directors of the respondent-company was that the same was attributable to dryness of raw tobacco and wastage and manufacturing loss over a period of time - Before the original authority it was claimed that the loss was less than 3% - There was no admission of suppression of production or production of goods without bringing them into account and clandestine removal of the same.- As per the decision of the Hon ble High Court of Punjab and Haryana High Court in the case of CCE Chandigarh vs.Nachiketa Paper Ltd. 2007 -TMI - 4147 - HIGH COURT OF PUNJAB AND HARYANA in support of her contention that the demand of duty on presumption and assumption that the raw material found short must have been used in the manufacture of final products which would have been cleared without payment of duty was not justified - Decided in favour of assessee.

Summary

Issues:
Shortage of raw tobacco, duty evasion, imposition of penalty, presumption of unaccounted manufacturing, benefit of doubt, justification for demand, imposition of penalties, corroborative evidences, suppression of production, clandestine removal, legal and proper order.

Shortage of Raw Tobacco:
The case involved a shortage of 10,400 kgs of raw tobacco discovered during a visit by officers to the factory premises. The company attributed the shortage to dryness of raw tobacco and manufacturing wastage. The original authority imposed duty on the company and penalties on the directors based on this shortage. However, the Commissioner (Appeals) set aside this decision, noting that the shortage was less than 3% of the processed raw tobacco. The Commissioner highlighted that no evidence of unaccounted manufacturing or clandestine clearance was found, and the entire case was based on presumption without corroborative evidence.

Duty Evasion and Imposition of Penalty:
The department alleged duty evasion due to the shortage of raw tobacco, which they claimed could have been used to manufacture and clear goods without payment of duty. The original authority imposed duty and penalties, but the Commissioner (Appeals) overturned this decision. The Commissioner emphasized that in the absence of concrete evidence supporting duty evasion, the benefit of doubt should go to the appellants. The Commissioner found no justification for sustaining the demand or imposing penalties, especially since there was no evidence of evasion against the company.

Presumption of Unaccounted Manufacturing and Clandestine Removal:
The department presumed that the shortage of raw tobacco led to unaccounted manufacturing and clandestine clearance of goods. However, the Commissioner (Appeals) rejected this presumption, stating that without thorough investigation and positive evidence, such presumptions cannot replace the requirement for proof. The Commissioner highlighted that the department's case was entirely based on presumption without substantial corroborative evidence, while the appellants logically explained the shortage without admitting to the department's viewpoint.

Justification for Demand and Corroborative Evidences:
The Commissioner (Appeals) emphasized that the demand for duty was highly presumptive, especially considering the lack of corroborative evidence supporting the department's allegations. The Commissioner noted that the entire case rested on presumption without any substantial proof, and the appellants' explanations were logical and consistent. The Commissioner found no justification to sustain the demand or impose penalties, especially since there was no evidence of evasion or unaccounted production.

Conclusion:
The Appellate Tribunal rejected the department's appeals and upheld the decision of the Commissioner (Appeals). The Tribunal found that the shortage of raw tobacco did not warrant duty evasion allegations or penalties, as there was no concrete evidence of unaccounted manufacturing or clandestine removal. The Tribunal emphasized the importance of thorough investigation and the need for corroborative evidence to support duty evasion claims. The decision highlighted the legal principle that presumption cannot replace the requirement for proof in such cases.