2004 (5) TMI 497 - AT - Central Excise

Summary

Issues:
1. Pre-deposit of duty amount and penalties for clandestine removal of goods.
2. Financial position of the appellant and the request for a stay application.
3. Requirement of evidence in evasion cases and the importance of circumstantial evidence.
4. Lack of evidence to establish the charge of clandestine manufacture and clearance of goods.

Analysis:

Issue 1:
The appellants were required to pre-deposit a significant duty amount and penalties for the alleged clandestine removal of super-enamelled copper wires and bare copper wires. The Revenue relied on seized packing slips and documents as evidence, but the appellants contested, stating that these slips were for packing final products only, not for proving manufacture and removal of goods. The appellants argued that crucial investigations were lacking, such as examining purchase invoices, final product sales, electricity consumption, and fund flow. The Tribunal noted the absence of statements admitting to the manufacture or clearance of goods in the impugned order, leading to the conclusion that the order was not sustainable.

Issue 2:
The appellant's financial position was a point of contention, with the appellant's advocate highlighting that the factory had been taken over by KSFC, affecting their ability to pre-deposit the required amount. The advocate emphasized the strong merits of the case and the financial constraints faced by the appellant. The Tribunal considered these circumstances and allowed the stay application, recognizing the appellant's case on both merits and financial grounds.

Issue 3:
In evasion cases, the importance of establishing charges through recovered documents was emphasized by the Revenue. The Revenue argued that circumstantial evidence, including packing slips and seized documents, played a crucial role in proving the charges. The Revenue pointed out the use of electricity from a generator by the appellant as a relevant factor, stating that evidence for excess electricity consumption was unnecessary in such circumstances.

Issue 4:
Upon careful consideration, the Tribunal found that besides the seized packing slips, there was a lack of substantial evidence to prove clandestine manufacture and clearance of goods. No admissions were made by the appellant's officers, and no evidence of excess stock or input shortages was found on the premises. The shortage identified was related to intermediate products, and the investigating officer's cross-examination did not reveal any conclusive evidence of clandestine activities. Considering the appellant's industry takeover by KSFC and the prima facie strength of the appellant's case, the Tribunal allowed the stay applications, waiving the pre-deposit amounts due to the significant sum involved. The appeals were scheduled for an expedited hearing, with both parties instructed to submit complete sets of documents before the hearing date.