2010 (7) TMI 516 - AT - Central Excise

Clandestine removal - Demand of excise and custom duty - Demand of central excise duty on the clandestinely removed final product as also the customs duty on the raw materials used in the manufacture of such goods - The partner as also authorized signatory had accepted illicit removal of the final product is factually incorrect - The demand stands confirmed only on the basis of shortages detected at the time of visit - There is no evidence to corroborate the allegation of clandestine removal - The same are required to be corroborated by independent and positive evidence . Held that in the absence of such evidence in the present appeal, find no reasons to uphold the impugned order - Accordingly appeal are allowed.

Summary

Issues:
1. Confirmation of demand of central excise duty on clandestinely removed final product.
2. Imposition of penalties on the appellant company, partner, and authorized signatory.
3. Appeal against the confirmation of demand and penalties.

Analysis:
1. The case involved M/s. Galaxy Textiles, a 100% EOU engaged in manufacturing polyester products. During a visit by officers, a shortage of finished goods was detected, leading to proceedings confirming demand of central excise duty on clandestinely removed final products and customs duty on raw materials. Penalties were imposed on the company, partner, and authorized signatory.

2. The Commissioner (Appeals) set aside the confirmation of customs duty on raw materials but upheld central excise duty confirmation and penalties on the unit and authorized signatory. The appellants appealed this decision, requesting a decision based on their appeal memo grounds. The lower authorities found illicit removal based on shortages and statements by the partner and authorized signatory.

3. The Tribunal noted discrepancies in the statements. While the partner and authorized signatory admitted shortages, they attributed them to clerical errors, not illicit removal. The Tribunal emphasized that allegations of clandestine removal require independent and positive evidence beyond shortages detected during visits. As no further evidence corroborated the allegations, the impugned order was set aside, and appeals were allowed with consequential relief to the appellants.