2015 (3) TMI 1091 - AT - Central Excise

Duty demand - Clandestine removal of goods - recovery of certain incriminating documents including certain diaries, five pendrives and one laptop - Held that - Appellants have not denied the charges against them except asking for cross-examination of some or the other person. We also noted that the case is not based upon the statements but documentary evidence and the statements have only explained the details in those documentary evidence. Even all the three appellants have admitted to the clandestine clearances/purchases. Under these circumstances, we find that the appellants do not have any prima facie case and the action of the Commissioner (Appeals) in directing pre-deposit of substantial amount of duty and penalty is not incorrect - since Commissioner (Appeals) has not gone into the merits in appeal, who has examined the details from stay angle, in the interest of justice, we set aside the stay order subject to the condition that the appellant No.1 deposits 50% of the duty confirmed, appellant No.2 deposits 25% of the penalty imposed and appellant No.3 also deposits 25% of the penalty, of ₹ 8,99,310/- within a period of six weeks from the date of receipt of this order and also present themselves with the production of the said deposits before the Commissioner (Appeals) on 07/05/2015. After noting the compliance, Commissioner (Appeals) will fix the date for personal hearing and thereafter decide the appeals finally. We make it clear that the Commissioner (Appeals) may decide the issue on merits without getting influenced by our observations made earlier. - Matter remanded back - Decided in favour of assessee.

Summary

Issues:
Investigation findings leading to duty evasion, imposition of penalties, non-compliance with deposit requirements under Section 35F of the Central Excise Act, 1944, appeals before the Commissioner (Appeals) and Appellate Tribunal, failure to appear for hearings, reduction of pre-deposit requirement, admission of clandestine activities, lack of prima facie case, setting aside stay order, remand for compliance and further appeal consideration.

Detailed Analysis:

1. Investigation Findings and Imposition of Penalties:
The case involved intelligence-based investigations revealing clandestine activities by certain manufacturers evading duty payments. The recovery of incriminating documents, diaries, pendrives, and a laptop led to the confirmation of duty liability, imposition of fines, penalties under various sections of the Central Excise Rules, and interest charges on the appellants.

2. Non-Compliance with Deposit Requirements under Section 35F:
The appellants filed appeals before the Commissioner (Appeals) but failed to deposit the required duty and penalties as directed. Despite multiple opportunities for hearings and modifications, the appellants did not comply with the deposit conditions under Section 35F of the Central Excise Act, leading to the dismissal of their appeals.

3. Appeals and Stay Proceedings:
The appellants, aggrieved by the dismissal, appealed before the Appellate Tribunal. The Tribunal observed the conduct of the appellants during the original proceedings and stay applications. Despite reductions in pre-deposit requirements by the Commissioner (Appeals), the appellants failed to appear for hearings, choosing to submit modification applications instead.

4. Admission of Clandestine Activities and Lack of Prima Facie Case:
The investigation revealed admissions by the appellants regarding clandestine clearances and purchases, supported by documentary evidence. The appellants did not deny the charges but sought cross-examination. The Tribunal noted the lack of a prima facie case due to admissions and documentary evidence, supporting the Commissioner (Appeals)'s decision on pre-deposit requirements.

5. Setting Aside Stay Order and Remand for Compliance:
While acknowledging the Commissioner (Appeals)'s detailed examination, the Tribunal set aside the stay order and directed the appellants to deposit specific percentages of the confirmed duty and penalties within a stipulated period. The appellants were required to appear before the Commissioner (Appeals) for compliance verification, emphasizing that the final decision should not be influenced by the Tribunal's observations.

6. Further Appeal Consideration:
The Tribunal allowed all three appeals by remanding the case with specific deposit conditions, emphasizing compliance within the specified timeline for further consideration by the Commissioner (Appeals) on the merits of the case.

This comprehensive analysis highlights the key legal aspects, procedural steps, and decision-making processes involved in the judgment, addressing the issues raised in the case effectively.