2023 (8) TMI 346 - AT - Central Excise

Clandestine Removal - demand mainly due to the difference between the sale figures available in the Schedule of the Balance Sheet for financial years 2004-05 2005-06 2006-07 and 2007-08 and the quantity of clearance of those products declared in the monthly ER-1 returns filed by them during the corresponding financial years - whether the correction Certificates dated 18.06.2008 issued by the Charted Accountant can be accepted or not? - HELD THAT - The Correction Certificates are added as Corrigendum to the Schedule. They are submitted to the Registrar of Companies and accepted by them. Hence the corrected certificates become part and parcel of the Schedule to the Balance Sheet. The Ld A.R submitted that before correcting the Schedules of the Balance Sheets it must be approved by the extraordinary General Body Meeting. Also there is no evidence on record that the Registrar has accepted these changes. Irrespective of acceptance or otherwise of the changes in the Schedules of the Balance Sheet it is found that there is nothing on record to doubt the veracity of the Certificates issued by the Charted Accountant or the reconciliation statements submitted by them - it is observed that duty cannot be demanded merely based on the difference in sales figures found between the balance sheet and the and ER-1 Returns. There must be some positive evidence brought on record to substantiate the allegation of clandestine clearance. Mere allegation of shortage based on the difference in sales figures found between the balance sheet and the and ER-1 Returns cannot be the basis for confirming the central excise duty on the differential quantity. In the case of KUTCHH STEELS PVT. LTD. VERSUS COMMISSIONER OF C. EX. ST. RAJKOT 2014 (6) TMI 483 - CESTAT AHMEDABAD it has been held that the demand based on difference of sale income as indicated ER-1 and Balance Sheet in the absence of any evidence of clandestine manufacture and sale of goods is not sustainable - In the case of MARTIN HARRIS LABORATORIES LTD. VERSUS COMMISSIONER OF C. EX. GURGAON 2005 (3) TMI 240 - CESTAT NEW DELHI it has been held that the Balance sheet cannot be held as sacrosanct document to prove clandestine removal. The demands made in the impugned order on the basis of the difference in Balance Sheet and ER-1 figures is not sustainable. Excess of stock of 2260 kgs. of Master Batch found on physical verification of stock of raw materials on 12.06.2008 - HELD THAT - It is observed that they have not taken Cenvat credit on the excess quantity of Master Batch found. The Appellant has given the explained that the difference might have occurred due to excess consumption of Master Batch recorded by the supervisor over a long period time. However since no Cenvat credit was taken on such excess quantity of Master Batch confiscation of the same does not arise. This view has been taken by the Tribunals in a number of cases and hence no penalty is imposable on the appellants on this count. However the excess quantity has already been seized and then released provisionally. There is no allegation in the Notice that they have taken any excess credit on account of this excess quantity of master batch found. There is no finding in the impugned order also that the excess quantity has been kept for manufacturing and clearance of the goods clandestinely - the confiscation of the excess quantity of master batch and the redemption fine imposed in the impugned order. Penalty imposed on the Director Shri.S.S. Jindal and the Authorized Representative Shri. B. Kamilla - HELD THAT - There was no role of them in the alleged short payment of duty. The demand has been confirmed based on the difference between the sales figures available in the Balance Sheet and the value declared in the ER-1 returns. The Director and the Authorized Representative has no role in the difference between the figures. The error in the figures if any has been committed by the Charted Accountant which has been admitted by the Firm and rectified. The issue in respect of the alleged clearance without payment of duty by issuing the cash memos has been settled before the settlement commission in respect of 50 cash memos - the role of any of the official has not been established in the alleged clearance of goods in respect of the 14 cash memos the penalty cannot be imposed on them. In view of the above it is held that the penalty imposed on the Director and Authorized representative not sustainable. The demand confirmed in the impugned order except Rs 4, 65, 299/- accepted and paid by the Appellant in respect of the 14 cash memos. The confiscation of the excess quantity of master batch found and the redemption fine imposed in the impugned order upheld - penalties set aside. Appeal disposed off.

Summary

Issues Involved:
1. Excess stock of Master Batch.
2. Discrepancies between Balance Sheet and ER-1 returns.
3. Duty demand based on 14 cash memos.
4. Penalty on Director and Authorized Representative.

Summary:

Excess Stock of Master Batch:
The Central Excise officers found 2375 kgs. of Master Batch in excess during a physical verification on 04.06.2008, and again 2260 kgs. on 12.06.2008. The Appellants explained that no Cenvat credit was taken on the excess quantity and the difference might have been due to excess consumption recorded by the supervisor. The Tribunal upheld the confiscation of the excess quantity but did not impose a penalty, as no Cenvat credit was taken and there was no evidence of clandestine clearance.

Discrepancies between Balance Sheet and ER-1 Returns:
The demand was primarily based on discrepancies between the sale figures in the Balance Sheet and the ER-1 returns for financial years 2004-05 to 2007-08. The Appellants argued that these discrepancies were due to mistakes in the Balance Sheets, which were later corrected by Chartered Accountant Certificates. The Tribunal accepted these correction certificates, noting that there was no evidence of shortages after corrections. It was held that duty cannot be demanded merely based on discrepancies without positive evidence of clandestine clearance, referencing cases like Kutch Steels Pvt Ltd and Martin & Harris Laboratories Ltd.

Duty Demand Based on 14 Cash Memos:
The demand included duty on 14 cash memos amounting to Rs.4,65,299/-. The Appellants had already paid this amount to avoid further disputes. The Tribunal noted that since the duty was paid and there was no clear finding of clandestine clearance, no penalty was imposable.

Penalty on Director and Authorized Representative:
Penalties were imposed on the Director and Authorized Representative. The Tribunal found no evidence of their involvement in the alleged short payment of duty or discrepancies. The errors were attributed to the Chartered Accountant and were rectified. Since their role in the alleged clearance was not established, the penalties were set aside.

Conclusion:
The Tribunal set aside the demand, except for Rs.4,65,299/- related to the 14 cash memos, upheld the confiscation and redemption fine for the excess Master Batch, and set aside the penalties on the Director and Authorized Representative. The appeals were disposed of accordingly.