2005 (11) TMI 276 - AT - Central Excise

Summary

Issues:
Stay applications filed by revenue to stay operation of order of Commissioner (Appeals) setting aside original authority's order.

Analysis:
The Appellate Tribunal CESTAT, New Delhi, considered stay applications filed by the revenue to suspend the operation of the order of the Commissioner (Appeals) which had set aside the original authority's order. The Tribunal noted that the demand was based on figures provided by HP PWD, who had purchased Bitumen Emulsion from the respondent. HP PWD confirmed that the respondent had received payment for the goods supplied. The respondent had cleared significant quantities of Bitumen Emulsion to HP PWD, which were not in line with the declared sales in their RT-12 returns for the respective years. As the goods were received by HP PWD and payments were made, the Tribunal found that clandestine removal was established since no other source of procurement was claimed by the respondent, and these transactions were not recorded in statutory records. Consequently, the Tribunal decided to stay the operation of the Commissioner (Appeals) order and granted the stay applications filed by the Revenue.

The Tribunal, after hearing the arguments presented by the learned JDR, acknowledged the discrepancy between the quantities of Bitumen Emulsion cleared to HP PWD and the sales declared by the respondent in their RT-12 returns for the relevant years. Given that HP PWD confirmed the receipt of goods and payment made to the respondent, the Tribunal concluded that the revenue did not need to establish the entire chain of procurement from raw material onwards to prove clandestine clearances. The Tribunal emphasized that once goods were cleared and payments received without any other legitimate source of procurement being claimed by the respondent, the presumption of clandestine removal was considered prima facie established. Consequently, the Tribunal allowed both stay applications filed by the revenue.

The Tribunal's decision to allow both stay applications indicated that they found sufficient evidence to support the revenue's claim of clandestine removal based on the discrepancy between the quantities of Bitumen Emulsion cleared to HP PWD and the sales declared by the respondent. By staying the operation of the Commissioner (Appeals) order, the Tribunal provided temporary relief to the revenue pending further hearings on the appeals. The Tribunal's ruling highlighted the importance of accurate record-keeping and transparency in business transactions to avoid allegations of clandestine activities and emphasized the significance of complying with statutory requirements to prevent such disputes in the future.