2008 (12) TMI 423 - AT - Central Excise

Clandestine removal - Duty and Penalty under Section 11AC of the Act - Case of the Revenue is based upon the statement of the co-accused which statements are not supported by any independent corroborative evidence - Held that - confession of co-accused cannot be treated as substantive evidence and Court must corroborate the purported confession from independent sources there is no sufficient material on record to establish clandestine manufacture and clearance confirmation of demand set aside and imposition of penalty under Section 11AC as also Rule 25 of Central Excise Rules. appeals are allowed with consequential relief to the appellants.

Issues Involved:
1. Confirmation of duty and penalties against M/s. Sulekhram Steels Pvt. Ltd.
2. Penalty imposition on individuals associated with M/s. Sulekhram Steels Pvt. Ltd.
3. Legitimacy of the evidence used by the Revenue.
4. Denial of cross-examination requests.
5. Allegations of clandestine manufacture and clearance of goods.

Issue-wise Detailed Analysis:

1. Confirmation of Duty and Penalties Against M/s. Sulekhram Steels Pvt. Ltd.:
The Commissioner confirmed a duty of Rs. 1,06,26,936/- against M/s. Sulekhram Steels Pvt. Ltd., along with interest and penalties under Section 11AC of the Act and Rule 25 of the Central Excise Rules, 2002. The Revenue's case was based on the assumption that M/s. A.S. Corporation procured fake invoices and sold TMT bars manufactured by M/s. Sulekhram Steels Pvt. Ltd. without paying duty. However, the Tribunal found no direct evidence of clandestine manufacture and clearance by M/s. Sulekhram Steels Pvt. Ltd. The Tribunal noted that the mere presence of the "SULEKHRAM" mark on TMT bars was insufficient to prove the goods were clandestinely cleared by M/s. Sulekhram Steels Pvt. Ltd. The Tribunal concluded there was no substantial evidence to support the allegations, thus setting aside the confirmation of duty and penalties.

2. Penalty Imposition on Individuals Associated with M/s. Sulekhram Steels Pvt. Ltd.:
Penalties were imposed on Shri Chhajusingh S. Kanwal, Chairman and Managing Director of M/s. Sulekhram Steels Pvt. Ltd., and other individuals under Rule 26 of the Central Excise Rules, 2002. The Tribunal found that without evidence of clandestine removal by M/s. Sulekhram Steels Pvt. Ltd., penalties on these individuals could not be upheld. Consequently, penalties on Shri Chhajusingh S. Kanwal and other associated individuals were set aside.

3. Legitimacy of the Evidence Used by the Revenue:
The Tribunal scrutinized the evidence used by the Revenue, including statements from traders and transporters. It found that the statements lacked corroborative evidence and were based on assumptions and presumptions. The Tribunal emphasized that allegations of clandestine removal must be supported by positive and tangible evidence, which was absent in this case. The Tribunal noted inconsistencies in the transporters' trip registers and the lack of independent corroborative evidence, leading to the conclusion that the evidence was insufficient to support the Revenue's case.

4. Denial of Cross-Examination Requests:
The appellants requested cross-examination of traders and brokers whose statements were relied upon by the Revenue. The adjudicating authority denied these requests, citing a lack of justification. The Tribunal found this denial unjustified, stating that if the statements were to be relied upon, the witnesses should have been made available for cross-examination. However, the Tribunal decided not to remand the matter on this ground, as the traders reiterated their statements during the proceedings.

5. Allegations of Clandestine Manufacture and Clearance of Goods:
The Tribunal analyzed the allegations of clandestine manufacture and clearance of goods by M/s. Sulekhram Steels Pvt. Ltd. It found no evidence of discrepancies in stock, raw material procurement, or additional labor and electricity consumption to support the allegations. The Tribunal highlighted the absence of any direct admission by M/s. Sulekhram Steels Pvt. Ltd. or M/s. A.S. Corporation regarding clandestine activities. The Tribunal concluded that the allegations were based on assumptions without substantial evidence, leading to the setting aside of the demand and penalties.

Conclusion:
The Tribunal allowed all appeals, setting aside the confirmation of duty and penalties against M/s. Sulekhram Steels Pvt. Ltd. and associated individuals. The Tribunal emphasized the need for positive and tangible evidence to support allegations of clandestine removal and found the evidence presented by the Revenue insufficient. The decision underscored the importance of corroborative evidence and the right to cross-examination in such cases.

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