2011 (6) TMI 644 - AT - Central Excise

Clandestine removal of goods - Demand of duty along with interest and equal amount of penalty - there is only a slight variation between the vehicle number Held that - no confessional statement of any of the employee or the office bearer of the respondent. There is no statement of transporter/transporters either, barring in case of the Vehicle No. MH-04-AL-4044. Even if there was slight variation in the vehicle numbers nothing prevented department to cause investigation in those cases and record the statement of the owners of the vehicle, clandestine activity at best can be established only by circumstantial evidence, case cannot be based on assumption and presumption and surmises or conjunctures, revenue s appeal is dismissed

Summary

Issues:
Appeal against Order-in-Appeal, Duty Demand Upheld, Penalty Imposed, Corroborative Evidence, Confessional Statement, Investigation on Vehicle Numbers, Clandestine Activity, Circumstantial Evidence, Tribunal Decision Applicability, Slight Variation in Vehicle Numbers, Statement of Broker, Statement of Employees or Office Bearers, Lack of Investigation on Vehicle Owners, Presumption and Surmises.

Analysis:
The case involved an appeal against Order-in-Appeal Nos. AKP/76 & 77/NSK/2009, where the ld. Commissioner (Appeals) upheld a duty amount of Rs. 27,099/- with interest and penalty, out of a total demand of Rs. 5,46,638/- along with interest and penalty, and set aside the remaining duty and penalty. The appellant contended that the Commissioner did not consider all evidence, particularly regarding a slight variation in vehicle numbers. The case was initiated based on private records retrieved from a broker, leading to a show cause notice against the respondent and its authorized signatory. The lower authority confirmed the demand and imposed penalties. The Commissioner upheld the demand only for one vehicle, MH-04-AL-4044, citing lack of corroborative evidence and confessional statements.

The appellant argued that the case was solely built on the broker's statement without other evidence. The absence of confessional statements or statements from transporters raised doubts. The Commissioner's decision was supported by the Tribunal's view that clandestine activities require circumstantial evidence, but assumptions cannot form the basis of a case. The respondent claimed they paid duty and penalties to avoid further issues, disputing the applicability of a precedent cited by the appellant. The Tribunal found no other evidence supporting the allegations, noting discrepancies in vehicle numbers and lack of thorough investigation.

The Tribunal emphasized the importance of corroborative evidence and proper investigation, highlighting the absence of statements from relevant parties and the reliance on a single source for allegations. The decision underscored that clandestine activities must be proven through concrete evidence, not assumptions or conjectures. The Commissioner's findings were deemed sound, and the appeal was dismissed, upholding the Order-in-Appeal. The judgment emphasized the need for solid evidence in cases of alleged clandestine activities and the importance of thorough investigations to establish facts conclusively.