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2013 (9) TMI 55 - AT - Central ExciseNon - Accountal of Goods - Allegation of non-accountal of 49.960 kgs. of branded chewing tobacco under the provisions of Section 9(2) & 173Q of the Central Excise Rules was concerned - there was no dispute that this much quantity of finished chewing tobacco had not been accounted for in the RG-12 Register and even at the time of personal hearing - the allegation had not been refuted, the Commissioner (Appeals) s order with regard to confiscation of 49.960 kgs. of branded chewing tobacco was upheld. Clandestine Removal - Duty Demand - Interest u/s 11AB - Penalty u/s 11AC - Held that - The findings of the lower appellate authority were uphled that entries in the bill book, Register titled rent receipt register and loose sheets pertained to the removal of finished goods without payment of duty and hence the duty demand based on the same has been correctly upheld - Since this was a case of clandestine removal, penalty under Section 11AC and interest on duty under Section 11AB would be attracted. Standard of Proof - Held that - The evidence on record in the case was sufficient to establish the preponderance of probabilities - Keeping in view the principles regarding the standard of evidence required for proving the allegation of duty evasion in the departmental adjudication proceedings - The standard of proof required in the Departmental proceedings under the provisions of the Customs Act, 1962 or Central Excise Act, 1944 or of the Rules made thereunder, for confiscation of goods, confirmation of demand for duty evaded, and imposition of penalty was the preponderance of probability - For establishing to be preponderance of probability, the adjudicating authority or the Tribunal had to evaluate the evidence of both the sides and decide what was most probable - Decided against assessee.
Issues Involved:
1. Confiscation of excess branded chewing tobacco. 2. Recovery of central excise duty for alleged clandestine clearances. 3. Imposition of penalty on the appellant firm and its proprietor. Issue-wise Detailed Analysis: 1. Confiscation of Excess Branded Chewing Tobacco: The jurisdictional Central Excise Officers found 49.960 Kgs. of packed chewing tobacco in excess of the balance shown in the production register during a visit to the appellant's factory on 1-7-1999. This excess quantity was placed under seizure. The appellant did not dispute the non-accountal of this quantity in the RG-12 Register. Consequently, the order of the Commissioner (Appeals) regarding the confiscation of the 49.960 Kgs. of branded chewing tobacco was upheld. 2. Recovery of Central Excise Duty for Alleged Clandestine Clearances: The central excise duty demand of Rs. 8,50,414/- was based on three categories of documents recovered from the factory premises: bill books, a register titled "rent receipt register," and loose sheets. The appellant argued that the bill book was an order book and not evidence of actual sales, that the rent receipt register did not pertain to clearances of chewing tobacco, and that the loose sheets were not theirs but might have been prepared by laborers. However, the statements of Shri Lalji Tiwari and Smt. Chamela Devi, recorded under Section 14 of the Central Excise Act, 1944, admitted that these documents pertained to the sale of chewing tobacco without payment of duty. These statements were neither disputed nor retracted. Therefore, the duty demand based on these documents was upheld. The Tribunal also dismissed the appellant's plea regarding the non-applicability of interest under the substituted Section 11AB, as the period of dispute was prior to 11-5-2001, and the interest was correctly demanded. 3. Imposition of Penalty on the Appellant Firm and Its Proprietor: The penalty of Rs. 8,50,414/- was imposed on the appellant firm under Section 11AC, but no penalty was imposed on Smt. Chamela Devi. The Tribunal upheld the penalty on the appellant firm, stating that since this was a case of clandestine removal, the penalty under Section 11AC and interest on duty under Section 11AB were attracted. The Tribunal rejected the appellant's reliance on the judgment in D.P. Industries, clarifying that the standard of proof in departmental proceedings is based on the preponderance of probability, not beyond a reasonable doubt, as established by the Supreme Court in Commissioner of Police, New Delhi v. Narender Singh and Collector of Customs, Madras v. D. Bhoormull. Conclusion: The Tribunal concluded that the evidence on record was sufficient to establish the preponderance of probabilities regarding the duty evasion. Therefore, the impugned order was upheld, and the appeal was dismissed.
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