2015 (9) TMI 1565 - AT - Central Excise

Clandestine removal - penalty - Doctrine of Merger - Held that - Since the statement dated 02.09.2003 and 12.09.2003 were never retracted by the appellant, the charges of clandestine removal, in my considered opinion, cannot be dropped. Though the Commissioner (Appeals) has not specifically dealt with the issue in hand, but the said aspect has been dealt with by the original authority at great length. Since the adjudication order has merged with the appellate order passed by the Commissioner (Appeals) and in the former order, the issue has been adequately discussed, I am of the view that the stand taken by the respondent in the Cross-Objection will not merit consideration. Appeal allowed - decided partly in favor of Revenue.

Summary

Issues:
1. Duty demand not proposed in show cause notice
2. Clandestine removal of goods
3. Dropping of penalty amount

Analysis:

Issue 1: Duty demand not proposed in show cause notice
The case involved a dispute regarding the duty demand of &8377; 2,64,405/- which was not part of the show cause notice but was confirmed in the adjudication order. The Tribunal observed that the show cause notice proposed a different amount for recovery compared to what was confirmed in the adjudication order. Therefore, the Tribunal held that the demand of &8377; 2,64,405/- was not a part of the show cause notice and could not be confirmed by the adjudicating authority. Consequently, the impugned order dropping this duty demand was upheld.

Issue 2: Clandestine removal of goods
The Commissioner (Appeals) had dropped duty demands of &8377; 65,805/- and &8377; 1,13,792/- due to lack of evidence showing goods were cleared without payment of duty. However, the Tribunal noted that the Director of the firm had made a confessional statement accepting the issuance of parallel invoices. As these statements were not retracted, the Tribunal concluded that charges of clandestine removal could not be dropped. Therefore, the impugned order dropping these duty demands was deemed unsustainable, and the amounts, along with interest and penalties, were held recoverable from the respondent.

Issue 3: Dropping of penalty amount
The Revenue contested the dropping of penalty amount in the impugned order. The Tribunal found that the Commissioner (Appeals) had not specifically addressed the evidence of clandestine removal in the case of a duty demand of &8377; 4,70,595/-. However, as the issue had been adequately discussed in the original adjudication order, the Tribunal held that the stand taken by the respondent in the Cross-Objection did not merit consideration. Consequently, the impugned order dropping the penalty amount was upheld.

In conclusion, the Tribunal partly allowed the Revenue's appeal by setting aside the impugned order regarding duty demands of &8377; 65,805/- and &8377; 1,13,792/-, which were dropped, while dismissing the Cross-Objection filed by the respondent.