CESTAT | Calculation of Revenue found to be erroneous and high pitched; Tribunal allows appeal setting aside penalty S. 11AC read with R. 25 of Central Excise Rules

Customs, Excise and Services Tax Appellate Tribunal (CESTAT): Anil Choudhary (Judicial Member), allowed an appeal which was filed aggrieved by the judgment and order of Commissioner (Appeals).

The appellant was engaged in the manufacture of MCBs (Miniature Circuit Breaker) and various other electrical accessories, which were dutiable falling under CETH 85362030. The appellant was availing SSI exemption in respect of goods manufactured on their own account or brand and at the same time, was paying duty on the goods bearing brand name of other persons. The other appellant was buyer of goods. On the basis of intelligence that the appellant has been indulging in evasion of duty, a search was conducted where certain documents were resumed. Statements of about 16 persons were recorded, which had been relied upon in the show cause notice. On the basis of scrutiny of the documents and statements of various persons, the Revenue concluded that duty was worked out including cess at Rs 1,22,00,622, invoking the extended period of limitation with a proposal to appropriate Rs.50 lakhs deposited during the investigation stage. Further, penalty was also proposed.

Initially, the appellant had approached the Settlement Commission, admitting duty liability of Rs 6,47,685. Before the Settlement Commission, the Department itself had revised the duty demand to Rs 49,50,711. However, the Settlement Commission recorded the finding that the evidence before it was not sufficient to come to any logical conclusion and sent the case to the Adjudicating Authority. The Adjudicating Authority further, on contest, confirmed a reduced demand of Rs 34,94,797, which was further reduced by the Commissioner (Appeals) to Rs 34,06,203, recording calculation errors. The Adjudicating Authority also imposed penalty of Rs 34,94,797 under Section 11 AC of the ACT read with Rule 25. Being aggrieved, the appellant again preferred appeal before the Commissioner (Appeals) who recorded the finding that the appellant have by and large accepted that they have been indulged in duty evasion but have raised certain issues – the calculation of turnover and duty evaded. They had mainly disputed the estimation of quantity. Commissioner (Appeals) re-calculated and aggrieved by which the instant appeal was filed. The counsel for the appellant, Mr Rajesh Chhibber urged that the Commissioner (Appeals) have erred in observing and reconciling the figures. Further, the rejection of the grounds of the appellant by the Commissioner (Appeals) particularly estimation of turn over by Revenue beyond the installed capacity was bad. Further, the learned Commissioner in spite of taking notice of a wide guess work down by the department has erred in not setting aside the duty demand along with a penalty for the alleged clandestine removal. It was further urged that in spite of allegation of the department of having cleared huge quantity and value of finished goods not a single consignment was intercepted outside the factory being transported without proper document either of raw materials or finished goods.

The Tribunal observed that it was evident on the face of the record that the show cause notice was issued by way of wide guess work wherein duty demand of Rs 1.22 crores was made approximately. Further, they found that Revenue had not worked out the source of raw material for manufacture of the huge quantity alleged to be clandestinely cleared, nor flow back of the proceeds of the alleged clandestine removal. Further, no adverse quantitative ratio has been found out nor any adverse ratio with respect to consumption of electricity was found. Admittedly, the total electricity bill for the two months in dispute is about Rs 20,100 or Rs 10,000 per month approximately. With such meagre consumption of power and taking in view the installed capacity, as well as the idle time due to power failure or break down of machine from time to time, the estimated production and confirming of duty by Revenue is found to be erroneous and high pitched.

The Tribunal allowing the appeal held that penalty under Section 11AC read with Rule 25 of Central Excise Rules should be set aside as case of Revenue was not proved.[Prakash Switchgear v. CCE, 2020 SCC OnLine CESTAT 321, decided on 12-11-2020]


Suchita Shukla, Editorial Assistant has put this story together

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