2010 (12) TMI 137 - AT - Central Excise

Demand of duty - clandestine removal - Invoice No. 7 dated 24.12.01 which was recovered there was already an invoice with the same number dated 5.12.01 which was accounted for - Commissioner (Appeals) accepted the version of the respondent that invoice No.7 dated 24.12.01 was a commercial invoice and not excise invoice - In the absence of investigation mere finding of the original authority that need for issue of commercial invoice is not disclosed is not sufficient to fasten duty liability holding that there was clandestine removal - appeal by the department rejected

Summary

Issues:
Appeal against order of Commissioner (Appeals) confirming demand of duty on disputed invoices and imposition of penalty.

Analysis:
The case involved an appeal by the department against the order of the Commissioner (Appeals) regarding the demand of duty on certain disputed invoices. The original authority had confirmed the demand of duty based on an invoice recovered from the premises of the respondents. It was alleged that the invoice in question could have been issued from a parallel invoice book, representing clearance of unaccounted goods. The Commissioner (Appeals) set aside the demand, questioning the imposition of duty on the disputed invoices. The Commissioner raised concerns about the lack of verification regarding the commercial nature of the invoice and the absence of investigations at the buyer's end. The Commissioner found the demand of duty to be based on presumptions and assumptions, ultimately setting aside the penalty as well.

The Tribunal noted that there was no evidence to show that investigating officers had identified the person in whose custody the disputed invoice was found or made efforts to question the buyers mentioned in the invoices. The Commissioner (Appeals) accepted the respondent's claim that the disputed invoice was a commercial invoice, not an excise invoice. It was emphasized that the mere finding of the original authority regarding the need for a commercial invoice was not sufficient to establish duty liability for clandestine removal. The Tribunal found no grounds in the appeal to overturn the factual findings made by the Commissioner (Appeals) and consequently rejected the department's appeal.

In conclusion, the Tribunal upheld the decision of the Commissioner (Appeals) to set aside the demand of duty and penalty related to the disputed invoices. The case highlighted the importance of proper verification and investigation in establishing duty liability, emphasizing that mere assumptions and presumptions are insufficient to support such claims. The judgment underscored the necessity of concrete evidence and factual findings to establish liability in cases involving disputed invoices and alleged clandestine removal of goods.