2004 (7) TMI 458 - AT - Central Excise

Summary

Issues:
1. Stay of operation of Order-in-Appeal
2. Evidence required for charge of clandestine manufacture and removal of goods
3. Requirement of pre-deposit of disputed amount

Analysis:
1. The appellant sought a stay of the operation of the impugned Order-in-Appeal. The appeal was filed by the Department against the Order-in-Original passed by the Addl. Commissioner of Central Excise, which dropped the proceedings initiated against the assessee. The Addl. Commissioner considered all facts and circumstances but noted the absence of evidence regarding clandestine manufacture and removal of goods. The Commissioner (Appeals) confirmed the demand based on statements of four persons, setting aside the order. The Tribunal observed that the Commissioner (Appeals) did not accept the Tribunal's ruling on clandestine removal, and the investigation agency failed to produce any evidence. Consequently, the stay application was allowed, waiving the pre-deposit of the disputed amount and staying recovery until the appeal's disposal.

2. The appellant's consultant argued that evidence is essential to prove the charge of clandestine manufacture and removal of goods, citing relevant judgments. The Tribunal cases of C.C.E., Meerut v. Moon Beverages Ltd and Krishna Bottlers (Vijayawada) Pvt Ltd. were referenced, along with the Supreme Court judgment in Kanungo & Co. v. Collector of Customs, Calcutta & Others. The absence of evidence was emphasized as a reason to challenge the confirmation of the demand. The Tribunal acknowledged the consultant's argument and deemed the statements of four persons insufficient to confirm the demand without concrete evidence like procurement of raw material, use of electricity, or clandestine sale proceeds.

3. The Revenue's representative contended that the appellants must pre-deposit the disputed amount, aligning with the Commissioner (Appeals)'s findings. However, the Tribunal, after considering both sides' submissions, highlighted the lack of evidence supporting the charge of clandestine activities. As a result, the Tribunal granted the stay application, allowing waiver of the pre-deposit and suspending recovery until the appeal's final disposal. The case was scheduled for a future final hearing, emphasizing the prima facie nature of the case in favor of the appellants.