2011 (2) TMI 566 - AT - Central Excise

Demand -Search and seizure - Scrutiny of the documents revealed that majority of the raw materials was received by M/s. Bhatia Colour Co. through Surat-Ahmedabad Transport Company - As the detailed statements are not required to be reproduced only relevant part of the statement would be adverted to wherever necessary - Revenue s case is that M/s. Shree Nathjee Industries who are engaged in manufacture of binders khadi adhesives have manufactured and cleared the said product clandestinely in excess of clearances reflected in their record - Revenue s case is essentially based upon the fact that trading units which are a group companies of Bhatias have actually cleared the final product manufactured by M/s. Shree Nathjee Industries under the guise of clearance of chemicals - There is absolutely no evidence of movement of raw materials to the factory of M/s. Shree Nathjee Industries or any evidence to show any manufacture and clearance of final product from their factory. Not a single paper of incriminating nature was found in the factory premises of M/s. Shree Nathjee Industries - Decided in favor of the assessee

Issues Involved:
1. Clandestine manufacture and removal of goods.
2. Validity of evidence presented by the Revenue.
3. Capacity of the manufacturing unit.
4. Credibility of expert opinions.
5. Cross-examination of witnesses and buyers.
6. Financial transactions and flow of money.
7. Use of raw materials and infrastructure facilities.
8. Confiscation of seized goods.

Detailed Analysis:

1. Clandestine Manufacture and Removal of Goods:
The core issue revolves around the allegation that M/s. Shree Nathjee Industries clandestinely manufactured and removed binders, khadi, and adhesives without reflecting these in their records. The Revenue's case is based on the assertion that the chemicals traded by four associated trading units were actually the final products manufactured by M/s. Shree Nathjee Industries.

2. Validity of Evidence Presented by the Revenue:
The Revenue's evidence included statements from various individuals, expert opinions, and records from trading units. However, the Tribunal found that there was no conclusive evidence showing the movement of raw materials to the factory or the final products from the factory to the trading units. Additionally, the statements from buyers and transporters were not sufficiently corroborative.

3. Capacity of the Manufacturing Unit:
The Commissioner calculated the manufacturing capacity of M/s. Shree Nathjee Industries based on the installed machinery and working shifts. However, the Tribunal found these calculations to be flawed. The actual capacity, considering the operational constraints and the installed machinery, was significantly lower than what the Commissioner estimated.

4. Credibility of Expert Opinions:
The Revenue relied on expert opinions from MANTRA and Prof. M.A. Shenoy, which suggested that the chemicals in question could not be used directly by the textile industry. However, the Tribunal noted the presence of contrary expert opinions and statements from processing houses that indicated the feasibility of using these chemicals directly.

5. Cross-Examination of Witnesses and Buyers:
The Tribunal emphasized the importance of cross-examining witnesses and buyers. The statements from some buyers indicated they received final products from the trading units, not directly from M/s. Shree Nathjee Industries. The Tribunal found that the statements of only a few buyers out of many could not substantiate the claim of clandestine manufacture and removal.

6. Financial Transactions and Flow of Money:
The Tribunal noted that the financial transactions between the trading units and the buyers were conducted through cheques, and there was no evidence of money being funneled back to M/s. Shree Nathjee Industries. The absence of any financial trail linking the clandestine activities to the manufacturing unit weakened the Revenue's case.

7. Use of Raw Materials and Infrastructure Facilities:
The Tribunal found no evidence of excess consumption of raw materials, electricity, water, or labor that would indicate clandestine manufacturing activities. The meticulous records maintained by the trading units regarding the purchase and sale of chemicals were not effectively rebutted by the Revenue.

8. Confiscation of Seized Goods:
Given the lack of concrete evidence supporting the allegations of clandestine manufacture and removal, the Tribunal found no justification for the confiscation of the seized goods. The Tribunal ordered the release of the confiscated goods and allowed the appeals with consequential relief.

Conclusion:
The Tribunal concluded that the Revenue failed to provide substantial evidence to support the allegations of clandestine manufacture and removal by M/s. Shree Nathjee Industries. The meticulous records maintained by the trading units, the lack of corroborative evidence, and the flawed capacity calculations led to the setting aside of the demand and penalties imposed by the Commissioner. The appeals were allowed, and the confiscation of goods was deemed unjustified.

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