2012 (2) TMI 469 - AT - Central Excise

Clandestine removal - Shortage of stok - case of assessee is that the Revenue completely ignored melting loss of 4% of copper wire scrap and loss of 1% on copper wire scrap covered with insulated material - there was a difference of opinion and the matter went before Larger Bench where it was held that it is apparent that except for the shortage in raw material viz., HD which was disputed by the assessee and the statement of the Director, there was no other evidence on record to indicate clandestine manufacture and removal of final products. On behalf of the revenue, except for placing reliance upon the statement of the Director recorded during the course of the search proceedings, no evidence has been pointed out which corroborates the fact of clandestine manufacture and removal of final products. In the circumstances, on the basis of the material available on record, it is not possible to state that the Tribunal has committed any legal error in giving benefit of doubt to the assessee - there being no concrete evidence (as agreed by both the Members) of clandestine removal of the goods, the appeals are required to be allowed - appeal allowed - decided in favor of assessee.

Issues Involved:
1. Basis of duty demand and evidence of clandestine removal.
2. Validity of statements made by the partner and employee.
3. Calculation of stock shortage and consideration of losses.
4. Corroboration of statements with documentary evidence.
5. Remand for recalculation vs. outright allowance of appeal.

Detailed Analysis:

1. Basis of Duty Demand and Evidence of Clandestine Removal:
The central issue was whether the duty demand could be upheld based solely on the input-output ratio of raw materials and final products. The appellant argued that the demand was based on assumptions and lacked concrete evidence of clandestine removal. The respondent contended that the shortage found during the officers' visit and the admissions by the authorized signatory and partner were sufficient evidence. The tribunal noted that the shortage calculation lacked clarity and detailed reasoning, and there was no specific evidence to support clandestine removal. The tribunal emphasized that allegations of clandestine removal must be supported by concrete and positive evidence, not just theoretical calculations.

2. Validity of Statements Made by the Partner and Employee:
The appellant challenged the reliance on statements made by the partner and an employee, arguing that these were not corroborated by further evidence. The tribunal observed that the statements alone, without supporting documentary evidence, could not substantiate the charge of clandestine removal. The tribunal highlighted that the veracity of such statements must be gauged from accompanying circumstances and independent evidence, which were absent in this case.

3. Calculation of Stock Shortage and Consideration of Losses:
The appellant contended that the lower authorities ignored the admitted losses (melting and burning losses) and calculated the shortage incorrectly. The tribunal found that the adjudicating authority did not provide reasons for rejecting the appellant's worksheet and calculations. The tribunal stressed the need for detailed reasoning and proper quantification of shortage, considering the appellant's claims about normal process losses. The tribunal remanded the matter to the original adjudicating authority to reassess the data and consider the appellant's contentions regarding calculation methods.

4. Corroboration of Statements with Documentary Evidence:
The tribunal underscored the necessity of corroborating statements with documentary evidence to substantiate allegations of clandestine removal. It was noted that the statements of the authorized signatory and partner were inconsistent with the documentary evidence and lacked independent corroboration. The tribunal stated that such statements could only raise doubts but could not serve as the sole basis for upholding the findings of clandestine removal.

5. Remand for Recalculation vs. Outright Allowance of Appeal:
There was a difference of opinion between the members of the tribunal on whether to remand the matter for recalculation of duty demand or to allow the appeal outright. One member favored remand for recalculation, considering the appellant's alternative plea regarding the extent of shortage. The other member argued that the absence of specific evidence of clandestine removal warranted setting aside the impugned order entirely. The third member, deciding the difference of opinion, concurred with allowing the appeal, emphasizing the lack of concrete evidence to support the charge of clandestine removal.

Conclusion:
The tribunal ultimately allowed the appeal, finding that the demand was based on assumptions and lacked necessary evidence. The tribunal highlighted the importance of concrete and positive evidence in cases of alleged clandestine removal and underscored the need for detailed reasoning and proper quantification of shortages. The appeal was allowed with consequential relief to the appellants.

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