2009 (4) TMI 627 - AT - Central Excise

Demand - Clandestine removal - Evidence - Penalty on Director - Personal penalty - Held that - The entire case of the Revenue is totally based on some slips/chits recovered from the factory premises of the appellants. No responsible person belonging to the assesses establishment was questioned in connection with the recovery of the chits. The liaison officer and the security assistant whose statements were obtained were not concerned with the production of yarn in the factory or its clearance therefrom. Therefore their statements to the effect that the slips recovered indicated details of the clearance of yarn cannot be relied upon - the Revenue has not established the case of clandestine removal of cotton yarn without payment of duty by the respondents. Clandestine clearance cannot be found on assumption and presumption; it has to be based on concrete evidence. Appeal dismissed - decided against Revenue.

Summary

Issues:
1. Alleged clandestine clearances of cotton yarn without payment of duty.
2. Violation of principles of natural justice by not allowing cross-examination of witnesses.

Issue 1: Alleged Clandestine Clearances of Cotton Yarn Without Payment of Duty:

The case involved appeals filed by the Revenue regarding the recovery of chits containing details of dispatch of cotton yarn without payment of duty from the premises of the respondents. The original authority demanded a significant amount from the appellants along with penalties. The Commissioner (Appeals) vacated the demand and penalties, citing lack of reliable evidence apart from the chits. The Commissioner found that the evidence gathered was insufficient to prove clandestine clearances evading duty as alleged by the original authority. The witnesses who initially supported the case of clandestine clearances retracted their statements upon receiving a Show Cause Notice. The Commissioner emphasized the need for concrete evidence and stated that clandestine clearance cannot be based on presumption or assumption. The Commissioner also highlighted the importance of principles of natural justice, referring to previous judgments. The Commissioner concluded that the Revenue failed to establish the case of clandestine removal of cotton yarn without payment of duty by the respondents, leading to the rejection of the appeal filed by the Revenue.

Issue 2: Violation of Principles of Natural Justice by Not Allowing Cross-Examination of Witnesses:

In the appeal filed by the Revenue, the ground taken was that the Commissioner (Appeals) had vacated the original authority's order due to the alleged violation of principles of natural justice by not allowing cross-examination of witnesses. The Revenue requested remanding the matter to the original authority for a fresh decision after allowing cross-examination of the witnesses. However, the respondents argued that the statements of the buyers admitting purchase of non-duty paid yarn were not relied upon in issuing the Show Cause Notice, making their deposition irrelevant to advance the Revenue's case. The respondents contended that the impugned order was passed in accordance with the law, and remanding the case would serve no purpose. The Commissioner, after considering both sides' submissions, concluded that the evidence presented by the Revenue was insufficient and not reliable. The Commissioner upheld the impugned order, rejecting the appeal filed by the Revenue regarding the alleged violation of principles of natural justice.

This comprehensive analysis of the judgment highlights the issues of alleged clandestine clearances of cotton yarn without payment of duty and the violation of principles of natural justice by not allowing cross-examination of witnesses. The judgment emphasizes the importance of concrete evidence in establishing clandestine clearances and upholding principles of natural justice in legal proceedings.