2009 (3) TMI 820 - AT - Central Excise

Summary

Issues:
1. Whether the order of adjudication is sustainable based on the evidence presented.
2. Whether there was clandestine removal of goods through parallel invoices.
3. Whether the penalty imposed on various individuals was justified.
4. Whether the order of the learned Appellate Authority was correct.
5. Whether the appeal of the Revenue should be dismissed.

Analysis:

1. The learned DR argued that the order of adjudication was sustainable as there was a clandestine removal of goods through parallel invoices resulting in a loss of revenue. The Adjudicating Authority correctly raised a duty demand and imposed penalties on the respondent and individuals involved. However, the learned Counsel for the respondent contended that there was no case against the respondent, and the order of the learned Appellate Authority was reasoned and speaking, warranting no interference due to lack of contrary evidence against the respondent.

2. The learned Counsel for the respondent further argued that the Revenue failed to provide conclusive evidence against the respondent. The Revenue's enquiry with the consignee and transporter did not yield results. There was no proof of excess production or unaccounted sale proceeds to support the claim of clandestine removal. The Adjudicating Authority's failure to establish these crucial points led the learned Commissioner (Appeals) to set aside the adjudication order.

3. Upon reviewing the record, it was found that the parallel invoices in question were discovered years after issuance. The Forensic laboratory report only addressed one invoice, not all three. The learned Commissioner concluded that there was insufficient evidence against the appellant regarding the questionable invoices. The denial of the appellant's request for cross-examination of the laboratory expert was based on the report being documentary evidence, not oral testimony.

4. The learned Commissioner's analysis revealed no credible evidence against the appellant, leading to the benefit of doubt favoring the respondent. The absence of concrete evidence and the denial of cross-examination supported the conclusion that the appeal of the respondent should be allowed. The learned Appellate Authority rightly dismissed the Revenue's appeal due to the lack of evidence to challenge the order.

5. The Revenue's appeal only addressed one litigant, neglecting the other individuals penalized in the case. As separate appeals were not filed for the penalties imposed on the other litigants, the order of the learned Commissioner in favor of the principal respondent remained untouched. The success of the principal respondent extended to the other penalized individuals, leading to the dismissal of the Revenue's appeal.