2015 (11) TMI 459 - AT - Central Excise

Confiscation of goods - Clandestine removal - Imposition of redemption fine and penalty - Held that - when appellant is manufacturing two types of goods and while counting ingots it is not coming out from the facts of the case that how much of ingots are 3-4 inches and how much ingots are 3.5x4.5 inches. Therefore the weighment method on average basis cannot be correct. Therefore there may be a variation while taking the stock. In these circumstances the method of counting the stock is not correct in the case of M/s. Jaideep Ispat & Alloys P Ltd. Therefore excess stock found may be due to this variance. In these circumstances the excess stock found in the case of M/s. Jaideep Ispat & Alloys P Ltd. unit 1 & 3 are not liable for confiscation. Further I find that in the case of M/s. Moira Steels Ltd. there is also excess stock found is less than 5%. There may be a variance of stock taking on average basis. In this case also the appellant is manufacturing two types of MS ingots. Therefore allegation of excess stock on average basis cannot be alleged against the appellant. Allegation made against the appellant that these goods are meant for clearance clandestinely without payment of duty is correct. Consequently I hold that in the case of M/s. Shivangi Estate Ltd. the goods are liable for confiscation. But I find that the duty involvement in the said goods is only Rs. 31, 252/-whereas redemption fine and penalties are imposed are highly excessive i.e. redemption fine of Rs. 1, 50, 000/- and penalty of Rs. 75, 000/- on M/s. Shivangi Estate Ltd. and penalty of Rs. 1, 00, 000/- on Pankaj Bansal Director. - However in the case of these three appellants mentioned in para 8 above goods are not liable for confiscation. Consequently redemption fine and penalty on the manufacturer appellant are not imposable - Decided partly in favour of assessee.

Summary

Issues:
- Liability for confiscation of goods due to excess stock found during a search
- Method of stock recording and weighing leading to discrepancies
- Imposition of redemption fine and penalty under Rule 26 of the Central Excise Rules, 2002
- Applicability of case laws in determining liability and penalties

Analysis:

Issue 1: Liability for confiscation of goods due to excess stock found during a search
The manufacturer appellants were appealing against orders holding goods liable for confiscation due to excess stock found during a search. The excess stock was alleged to be for removal clandestinely without payment of duty. Show cause notices were issued, and after adjudication, goods were held liable for confiscation, leading to imposition of redemption fine and penalties on the manufacturer appellants and their authorized representatives.

Issue 2: Method of stock recording and weighing leading to discrepancies
The appellants argued that stock taking was done on an average basis, which they contended was not a proper method. They claimed that the excess stock found was due to an error in recording stocks on average basis and not for evasion purposes. The authorities, however, maintained that discrepancies in stock found during physical verification were valid, especially in cases where excess stock was significant. The tribunal analyzed the discrepancies in stock recording and weighing methods for each appellant to determine liability for confiscation.

Issue 3: Imposition of redemption fine and penalty under Rule 26 of the Central Excise Rules, 2002
The tribunal considered the imposition of redemption fines and penalties under Rule 26 of the Central Excise Rules, 2002. It assessed the duty involvement in the confiscated goods and the proportionality of the imposed fines and penalties. The tribunal found that while some penalties were excessive, in certain cases, they were reduced based on the duty amount involved and the circumstances of the case.

Issue 4: Applicability of case laws in determining liability and penalties
Both the appellants and the authorities relied on various case laws to support their arguments regarding liability for confiscation and imposition of penalties. The tribunal scrutinized the relevance of these case laws to the specific facts and circumstances of the case. It concluded that certain case laws cited were not directly applicable to the present case, especially concerning mens rea requirements for penalty imposition and attributability of shortages to the manufacturing unit.

In conclusion, the tribunal allowed the appeals of certain appellants where discrepancies in stock recording and weighing methods were found, leading to the goods not being liable for confiscation. It also reduced redemption fines and penalties in cases where the amounts were deemed excessive. The decision was made after a thorough analysis of the facts, arguments presented, and relevant legal provisions.