2010 (1) TMI 634 - AT - Central Excise

Search and seizure - Demand - Clandestine removal - The department after seizing the record had added the dates in the challans and for this purpose cross-examination of the Superintendent was conducted - Investigation have been conducted by the Revenue and no verification has been made at the receiver s end to show that the goods covered by the invoices are not the ones which are dispatched - It is settled law that documentary evidence have to be preferred to statements recorded It is clear that demand is to be confirmed on the ground of suppression of facts and mis-declaration and thereby holding that extended period has been correctly invoked - without investigation and without completing investigation, show cause notice invoking extended period could not have been issued - It is made clear that failure to pay any of the three amounts within 30 days from the date of receipt of this order would result in enhancement of penalty to 100% of the duty demanded

Issues:
1. Duty demand based on discrepancies in physical stock and seized documents.
2. Confirmation of duty demand, penalty, and interest under Section 11AC of Central Excise Act, 1944.
3. Discrepancies in invoices and challans leading to duty demand.
4. Goods cleared under parallel set of invoices without payment of duty.
5. Duty demand based on Lorry Receipts (LRs) without corresponding invoices.

Analysis:

1. The appellant, engaged in manufacturing Texturised Polyester Filament Yarn, faced duty demand due to discrepancies in physical stock and seized documents post a search by Central Excise Officers. The investigation included statements from transporters and the Director's authorized representative, as the Director failed to appear despite multiple summonses.

2. Proceedings initiated resulted in the confirmation of duty demand, penalty, and interest under Section 11AC of the Central Excise Act, 1944. The appellant's advocate argued against the duty demand related to consignments cleared under challans without corresponding invoices, highlighting discrepancies in dates on the challans and invoices.

3. The first worksheet's duty demand was contested by the appellant, emphasizing that the delivery challans and carton numbers were accurately mentioned in the invoices. The department's reliance on the authorized signatory's statement and challan dates was challenged, pointing out inconsistencies in the evidence presented.

4. The second worksheet focused on goods cleared under parallel invoices, with the appellant failing to provide a satisfactory explanation for the existence of a parallel set of invoices. The confirmation of duty demand based on this worksheet was upheld due to the clear admission by the authorized signatory and the recovery of the parallel invoice book.

5. The third demand, related to consignments based on Lorry Receipts (LRs) without corresponding invoices, was challenged by the appellant. The rejection of this claim was questioned, highlighting the matching details between the invoices, delivery challans, and LRs. The lack of investigation by the Revenue and discrepancies in the LRs led to the demand being set aside.

6. The Tribunal considered all submissions and evidence presented by both sides. The issue of clandestine removal of goods was analyzed concerning the three categories of removals outlined in the show cause notices. The Tribunal scrutinized the documentary evidence, emphasizing the importance of documentary proof over statements recorded.

7. Ultimately, the Tribunal set aside the duty demand covered by worksheet-1 due to insufficient documentary evidence supporting the Revenue's claims. However, the demand covered by worksheet-2, related to goods cleared under parallel invoices, was upheld based on the clear admission and evidence of the parallel set of invoices.

8. The Tribunal also rejected the demand covered by worksheet-3, pertaining to LRs without corresponding invoices, citing insufficient investigation and discrepancies in the LRs. The imposition of penalty under Section 11AC of the Act was confirmed, with an option provided to the appellant to reduce the penalty amount by paying the duty, interest, and penalty within a specified timeframe.

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