2007 (3) TMI 623 - AT - Central Excise

Clandestine removal - Proof - Demand, penalty and redemption fine - Clandestine removal of tobacco

Issues Involved:
1. Confiscation of non-duty paid 'Pasu' brand chewing tobacco and the vehicle used for transportation.
2. Demand for unpaid duty on clearances of branded chewing tobacco.
3. Imposition of penalties on A.R. and associated individuals.
4. Validity of the evidence used to substantiate clandestine clearances and procurement of raw tobacco.
5. Reliability of statements and documents used to support the findings.
6. Adherence to remand directions by the Commissioner.

Detailed Analysis:

1. Confiscation of Non-Duty Paid Tobacco and Vehicle:
The Commissioner confiscated seized chewing tobacco and the vehicle used for transportation, offering an option for redemption. The tribunal upheld the confiscation but modified the redemption fines, allowing the tobacco to be redeemed on payment of Rs. 35,000 and the vehicle on payment of Rs. 25,000.

2. Demand for Unpaid Duty:
The Commissioner confirmed a demand of Rs. 2,01,22,766 under Section 11A(2) of the Central Excise Act, along with interest under Section 11AB. The demand was based on the alleged clandestine clearances of branded tobacco. The tribunal revised the duty demand to Rs. 3,57,154, which was admitted by the appellants for non-duty paid clearances.

3. Imposition of Penalties:
Penalties were imposed on various individuals under Rule 26 of the Central Excise Rules, 2001/2002, and Rule 209A of the erstwhile Central Excise Rules, 1944. The tribunal affirmed the penalty on Shri S. Ravindran but reduced the penalties on Shri S. Raja and Shri K. Govindaraj to Rs. 10,000 each.

4. Validity of Evidence for Clandestine Clearances:
The Commissioner relied on documents, diaries, registers, and statements to substantiate the clandestine clearances. However, the tribunal found that these records did not reliably support the finding of non-duty paid clearances of 'Pasu' brand tobacco. The statements from various agents were retracted during cross-examination, and the tribunal noted that the quantification of clandestine clearances was not reliable or correct.

5. Reliability of Statements and Documents:
The tribunal observed that the statements given by Shri A. Ravindran were not voluntary, as he was made to peruse a vast number of documents and statements in languages he did not understand. The tribunal accepted the retractions made during cross-examination and found the evidence used by the Commissioner to be unreliable.

6. Adherence to Remand Directions:
The tribunal noted that the Commissioner did not adhere to the remand directions, which required considering the depositions made by witnesses during cross-examination. The Commissioner disregarded these evidences, leading to the tribunal setting aside the demand except for the admitted liability.

Conclusion:
The tribunal concluded that the findings of the adjudicating authority were based on unreliable evidence and considerations. The demand was revised to the admitted amount, and the penalties and redemption fines were modified accordingly. The appeals were disposed of with the revised penalties and duty demands.

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