2021 (11) TMI 655 - CESTAT MUMBAI

Clandestine Removal - M. S. Ingots - alleged involvement in abetting / planning such surreptitious illegal activity - retraction of statements - opportunity of cross examination of witnesses - Rule 26 of the Central Excise Rules, 2002 - HELD THAT:- It is fundamental principle of judicial precedence that the decisions rendered by the courts and tribunal are not the law, legislated by the Parliament, and hence cannot be applied universally, but should be applied after establishing the relevance and significant similarity with the facts of case under consideration and the decision sought to be relied upon. The facts in case of clandestine clearance do not render themselves to such similarity and hence the decision sought to be relied upon need to be examined with caution. It is established principle, that clandestine activities are undertaken with secrecy, under cover of darkness and would not leave the complete trail of evidence for the investigating authorities to detect and discover the said activities - If on the basis of the evidences adduced which would be of the nature as enumerated at (ii) of para 40 of the said decision, the conclusions in relation to act of clandestine manufacture and clearance should be arrived at. In the instance case, there are sufficient evidences as enumerated therein have been put forth to establish the case against the appellant within pre-ponderence of probability.

Nothing has been brought on record to show that the demand made in present case based on the evidences and admissions/ confessions by the Director of Appellant 1, was covered under the earlier show cause notice. The earlier demand was based on certain studies conducted, and on the basis of electricity consumption was made. The demand was in nature of presumptive demand, and as per the submissions made by the appellant the appeal against the said order was dismissed not after consideration on merits but for the reason of non compliance with provisions of Section 35 F of the Central Excise Act, 1944. Appellants have also not placed on records any document evidencing such dismissal of the appeal filed by them.

There are no reason for not dismissing the appeals filed by these appellants under Rule 20 of CESTAT Procedure Rule, 1982, and also on merits ex- parte, for the reason that they were part of the entire activity of clandestine clearance undertaken by Appellant 1 - role of Appellant 3 & 4 has been clearly spelt out in planned activity of clandestine clearance, the fact admitted by them in their statements recorded under Section 14 of Central Excise Act, 1944. In view of the above admission of their involvement in activities of clandestine production and clearance by Appellant 1, the penalties imposed on them is upheld.

Appeal dismissed.