Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Dept. Can’t Classify Product as Zarda Scented Tobacco After Repeatedly Approving It As Chewing Tobacco: CESTAT *  Mere Uploading Of GST Order On Portal Is Not “Valid” Service: Tripura HC *  CGST Can Proceed Even If SGST Closed Similar Case Earlier: Delhi HC *  SC upholds 28% GST on online gaming with retrospective effect. *  West Bengal Govt cuts E-way Bill Threshold limit to Rs. 50,000 for intra-state goods movement. *  Criminal Prosecution Under Central Excise Act Can’t Continue After CESTAT Sets Aside Duty Demand on Merits: Punjab & Haryana High Court. *  Madras High Court Quashes GST Assessment Orders for Denial of Personal Hearing; Remands Matter Subject to 10% Deposit *  Ex Parte GST Order: Madras High Court Directs Immediate Removal of Bank/ITC Attachment Upon 25% Deposit *  J.K. Cement Receives GST Demand Order of Rs 8,02,113/- from Ahmedabad Tax Authority *  Delhi Police EOW Busts Alleged Rs. 128 Crore GST Fake Invoice Network. *  REPLY TO SCN CAN’T BE TREATED AS “EMPTY FORMALITY”: ORISSA HIGH COURT QUASHES GST DEMAND OF RS. 57.30 LAKH *  Challenge to CGST Provisions restricting ITC to Bonafide Purchasers : Allahabad HC issues notice *  CBIC Notifies Revised Customs Tariff Values for Edible Oils, Gold, Silver, Brass Scrap and Areca Nuts *  Delhi HC Orders Removal of GST Attachment After Statutory 1 Year Period Expired *  GSTAT Extends Relaxed Appeal Filing Guidelines till December 31, 2026 *  AO fails to Provide Import - Export Data from DGFT to Taxpayer for Reconciliation *  Gold, Silver Imports To Get Costlier As Govt Raises Customs Duty To 10%  *  GSTAT Enables Pre-Payment Access to Document Upload and Checklist for GST Appeal Filing *  GST Portal Restrictions Can’t Override Statute: Gujarat HC Allows Cross-State Transfer Of CGST ITC After Amalgamation *  Centre Revises HS Codes for Large Diameter Steel Pipes Used in Oil & Gas Pipelines *  Customs Duty Liability Arises On Warehouse Clearance Date: Supreme Court *  Government lifts export ban on de-oiled rice bran *  CESTAT Grants 12% Interest on Pre-Deposit for Investigation from Date of Deposit till Refund and Denies Interest on Interest. *  Government Overhauls GST Classification Framework for Non-Alcoholic Beverages; Fruit Juice Drinks, Milk-Based Beverages and Caffeinated Drinks to Attract Revised 5% and 40% GST Rates from May 1, 2026 *  India’s gross GST collections hit a record Rs 2.42 lakh crore in April, up 8.7% *  Customs clearance stalled, revenue hit over MRP dispute *  Shipping Corporation explores Middle East routes as Hormuz tensions disrupt cargo movement *  India, Kenya signs MoU for exchange of pre-arrival customs information *  No demand of Taxes under Reverse Charge if Tax Already Discharged by Service Provider under forward charge *  The India-New Zealand Free Trade Agreement, signed "once-in-a-generation" deal that eliminates tariffs on 100% of Indian exports to New Zealand
Subject News *  Consignment Sales Can’t Be Reclassified as Inter-State Sales Based on Pre-Agreement Evidence: CESTAT *  Exporter Can’t Be Denied Advance Authorization Benefit Due To ICEGATE Technical Glitch: Delhi High Court *  No GST Demand For Mere Wrong Set-Off Of IGST Credit Under CGST And SGST Heads: Kerala HC. *  Cenvat Credit Can’t Be Denied on Input Services Having Nexus With Manufacturing Activities: CESTAT *  Pending Proceedings Can’t Survive Without Saving Clause: Calcutta High Court Quashes GST Demand of Rs. 6.28 Crore After Omission of Rule 96(10) *  Madras HC Quashes GST Demands on TASMAC (Tamil Nadu State Marketing Corporation) Bar Licence Fee *  GST Proceedings Cannot Survive Omitted Rule Without Saving Clause: Calcutta HC *  Provisional Release Can’t Be Denied Solely On Dept. Suspicion Of Misclassification And Undervaluation Of Imported Goods: CESTAT *  Businesses Should Not Be Kept Outside GST Regime Without Due Process: Gauhati High Court *  Punjab & Haryana HC Directs Reconsideration of Contractors’ Claim for Additional GST Payment After Tax Rate Hike From 12% to 18% *  S. 108 Statements Can’t Be Sole Basis Without Following Section 138B Procedure: CESTAT *  Bombay High Court Frames Key Questions on Mandatory Distribution of ITC U/s 20 CGST Act *  Filing of Annexure-B for Refund Applications involving Accumulated ITC using the offline utility in GST portal: GSTN *  No Service Tax on Parent Company’s Un-Invoiced Cost Allocations Without Actual Service or Consideration: CESTAT  *  Calcutta High Court Upholds GST Classification of Polypropylene Leno Bags as Plastic Products *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  GSTAT Issues Major Bench Allocation Framework; All Appeals to First Go Before Division Bench *  ITC Blocking Without Reasoned Order Violates Rule 86A; Punjab & Haryana HC Directs Release of Credit *  Allahabad HC Refuses Bail to CGST Superintendent In Rs. 70 Lakh Bribery Case *  S.130 Can’t Be Invoked Without Prior Tax Determination U/s 73/74: Allahabad High Court Quashes GST Confiscation Proceedings *  SC grants Bail to Rs 54cr GST case  *  Karnataka HC Sets Aside Duplicate GST Orders, Orders Fresh Hearing on GSTIN Cancellation *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  Transfer Of Unutilized ITC After Amalgamation - Supreme Court Issues Notice *  PUNJAB & HARYANA HC QUASHES GST CANCELLATION NOTICE FOR FAILURE TO PROVIDE CBIC ENQUIRY REPORT *  LICENSE FEE, TECHNICAL ASSISTANCE CHARGES NOT INCLUDIBLE IN CUSTOMS VALUE UNLESS THEY ARE A CONDITION OF SALE: CESTAT *  DELHI HC ORDERS REMOVAL OF GST ATTACHMENT AFTER STATUTORY 1 YEAR PERIOD EXPIRED *  CUSTOMS BROKER CAN’T BE FAULTED JUST BECAUSE EXPORTER’S GST REGISTRATION WAS PREVIOUSLY CANCELLED: CESTAT   *  Supreme Court Dismisses Review Plea Against Delhi HC Ruling Holding Real Operator Behind Fake GST Firms Liable As ‘Taxable Person  *  GST Appeal Can’t Be Rejected Merely Because DRC-07 Was Not Uploaded On Portal: Bombay High Court  

Comments

Print   |    |  Comment

PJ/Case Law/2011-12/1138

Shortage of Goods attracts Penalty under Rule 25 of CER, 2002

Case: S. K. Sacks Pvt Ltd v/s Commissioner of C. Ex, Chandigarh 
 
Citation: 2011 (266) ELT 259 (Tri-Del)
 
Issue: - Shortage of goods attracts penal action u/R 25 but evidence is required for invocation of penal action under Section 11AC
 
Brief Facts: - The Central Excise officers visited the premises of Appellant-assessee on 10.05.01 and noticed shortage of 40, 187/- kgs of inputs namely plastic granules on which credit was taken. The appellant accepted the shortage and paid the credit involved voluntarily. For the said shortage of inputs, separate proceedings are going on.
 
On, 03.11.2001, the Central Excise officers again visited the factory of the appellant and noticed that there was shortage of huge quantity of finished goods namely plastic woven fabrics and plastic sacks. The Director of appellant claimed that the shortage of finished goods was attributable to shortage of inputs found on 10.05.01.
 
Revenue issued show cause notice proposing to demand duty with interest on shortage of finished goods and for imposition of penalty under Rule 25 of CER, 2002 read with Section 11AC of the Central Excise Act, 1944. The party deposited the amount of duty involved on 04.11.01 and on 05.06.03 respectively. The Original Authority confirmed the demand with interest and imposed penalty equal to the amount of duty.
 
In appeal, the Commissioner (Appeals) upheld the demand but reduced the penalty to Rs. 60, 000/-. The Revenue is in appeal before the Tribunal seeking enhancement of penalty. Appellant assessee is in appeal challenging the confirmation of duty with interest and the imposition of penalty of Rs. 60, 000/-.
 
Assessee’s Contention:  - Appellant contended that duty is payable only on removal of goods under Rule 4 of CER, 2002. Therefore, the Lower Authorities erred in demanding the duty and the Commissioner (Appeal) erred in sustaining the penalty. Reliance was placed in judgment given in Allied Industries Ltd v/s CCE, Surat [2009 (235) ELT 337 (Tri-Ahmd)], Sun Pharmaceutical Industries Ltd v/s CCE, Daman [2009 (234) ELT 666 (Tri-Ahmd)] and in Ganga Kisan Sahkaru Chini Mills v/s CCE, Meerut [2009 (233) ELT 136 (Tri-Del)].
 
Revenue’s contention:- Revenue contended that it is a clear case where Section 11AC should be invoked and there was no justification in reducing the penalty to Rs. 60, 000/-. It was submitted that the party was a habitual offender and no leniency is to shown to them. It was submitted that shortage of inputs on 10.05.01 had no bearing on shortage of finished goods noted on 03.11.01.
 
Reasoning of Judgment: - The Tribunal noted that the investigating officers had not further investigated the shortages of finished goods after duty was deposited by the appellant. And a cryptic show cause notice was issued invoking Section 11AC. Thus, before the adjudication, the entire amount of duty involved was paid. It was held that there is no justification linking the shortage of inputs on 10.05.01 to shortage of finished goods on 03.11.01. It was noted that shortage of inputs could explain excess of finished goods but shortage of inputs cannot explain shortage of finished goods.
 
The Tribunal further noted that there is no evidence relied upon by the Revenue to substantiate the charge of clandestine removal of finished goods. It was held that the manufacturer’s obligation to account for the goods manufactured is a strict obligation and failure to do so clearly attracts the provisions of Rule 25 (1) (b) of CER, 2002. It is a clear case of non-accounted shortage and penalty is warranted under Rule 25 (1) (b). However, there is no evidence adduced by the Revenue requiring invocation of Section11AC. In the circumstances, penalty of Rs. 60, 000/- imposed on appellant by the Commissioner (Appeal) upheld.
 
Decision:- Appeal of the Revenue as well as of the appellant-assessee rejected.
 
Comment:- This is a good decision which has defined the circumstances where Rule 25 penal action or penalty under Section 11AC can be invoked.
 

****************

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com