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2013 (11) TMI 746 - AT - Central ExciseClandestine removal of goods – Common records in one premises maintained for three premises - Shortage of finished goods found on examination – Held that:- Stock taking of the finished goods was undertaken by the officers in the presence of appellants and appellant never raised any objection to the method of stock taking - Any representation made afterwards has to be considered only as an afterthought when the duty liability, worked out on the shortage of finished goods manufactured and cleared by the appellants, was voluntarily paid without protest – thus, Duty demand has been correctly confirmed by the appellant along with imposing penalty equivalent to the duty involved. Imported Nickel cathodes Purchased on high sea sale basis admissible for cenvat credit or not – Held that:- Following Commissioner vs. Dhanlaxmi Tubes & Metal Industries -[2012 (10) TMI 263 - GUJARAT HIGH COURT ] - as there is no independent positive documentary evidence/statement confirming that imported Nickel has in fact has been diverted elsewhere and has not reached appellant’s factory - No Nickel was found short at the time of Stock taking by the visiting officers of Central Excise and no quantity diverted - Nickel was seized anywhere in the proceedings, it cannot be appreciated that imported Nickel was diverted in and around Delhi - cenvat credit with respect to imported Nickel was correctly availed by the appellant as their duty paid character and use in the manufacture of end product has been established by the records maintained by the appellant along with their confirming statements that inputs have been used for the manufacture of the finished goods. Penalty u/s 11AC of the central excise act, 1944 - Penalty on Director and vice president under rule 26 of central excise rules, 2002 and rule 15 of cenvat credit rules 2004 – Held that:- As the credit with respect to Nickel has been held to be admissible, personal penalties imposed upon all the appellants under Rule 15 of the Cenvat Credit Rules, 2004 set-aside and corresponding equal penalty imposed under Section 11AC read with Rule 15 (2) of the Cenvat Credit Rules, 2004 also set aside - For clandestine removal of finished goods, personal penalties are required to be imposed upon the Director and vice President of the main appellant under Rule 26 of the Central Excise Rules, 2002 as they could not satisfactorily explain the shortages/ clandestine removals – Decided partly in favour of Assessee.
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