2012 (9) TMI 815 - AT - Central Excise

Clandestine removal of goods alleged that clandestine removal of the goods in the connivance with the dealers and transporters Held that - Finding by the Commissioner is that there was no excess quantity of tobacco (input) found in the appellants premises nor the shortage thereof - there is also finding that the entire premises of the appellants factory was inspected - cash recovered from the premises there is also no attempt on the part of the adjudicating authority to ascertain its link with the proceeds of the goods alleged to have been clandestinely removed. The link cannot be established on mere assumption. There must be some material on record which is to be ascertained by analyzing the same - findings which are arrived at by the Commissioner are merely based on assumption without proper analysis of the materials on record. Hence, the same are not sustainable - confirmation of demand and/or imposition of penalty cannot arise - order is quashed and set aside and the matter is remanded for consideration thereof afresh.

Issues Involved:
1. Clandestine removal of goods and evasion of duty.
2. Validity of evidence such as slips, pen drives, and transporter documents.
3. Allegations of conspiracy and involvement of various parties.
4. Procedural lapses, including denial of cross-examination.
5. Seizure and confiscation of goods and cash.

Detailed Analysis:

1. Clandestine Removal of Goods and Evasion of Duty:
The appellants were accused of clandestine removal of goods without accounting them in their books and without payment of duty. The Commissioner confirmed the duty demand of Rs. 5,18,16,960/- for the removal of 17992 bags of gutka, along with interest and an equal amount of penalty. The duty of Rs. 1,05,030/- was also confirmed for goods seized at M/s. Udai Traders' premises. The Commissioner based his findings on the excess quantities of raw materials like supari and katha, which were deemed crucial for establishing unaccounted production. The appellants contested these findings, arguing that there was no statutory requirement to record these raw materials and that the Commissioner erred in rejecting their defense.

2. Validity of Evidence:
The Commissioner relied on various pieces of evidence, including nine slips, 202 slips seized from Lal Chand Agarwal's residence, and details retrieved from a pen drive. The appellants argued that the slips and pen drive contents were not credible and lacked proper linkage to the alleged clandestine activities. The Commissioner also used arithmetical calculations based on the quantity of packing material to support the charge of clandestine removal. However, the Tribunal found that the Commissioner failed to properly analyze the evidence and merely assumed the credibility of the slips and pen drive contents.

3. Allegations of Conspiracy:
The Commissioner concluded that there was a conspiracy involving the manufacturer, dealer, and transporter for the clandestine removal of goods. However, this finding was not supported by the show cause notice, which did not include any charge of conspiracy. The Tribunal noted that the alleged conspirators were not made parties to the proceedings, and no show cause notice was issued to them. The Tribunal found that the Commissioner erred in arriving at the conclusion of conspiracy without proper evidence and without including all relevant parties in the proceedings.

4. Procedural Lapses:
The appellants argued that they were denied the opportunity to cross-examine key witnesses, which violated their right to a fair hearing. The Tribunal agreed, noting that the deponents were not subject to cross-examination despite specific requests by the appellants. The Tribunal emphasized the importance of cross-examination in testing the credibility of the evidence and statements relied upon by the Commissioner.

5. Seizure and Confiscation of Goods and Cash:
The Commissioner ordered the confiscation of various goods and cash seized from the appellants' premises and imposed penalties on different parties. The Tribunal found that the Commissioner failed to establish a clear link between the seized cash and the proceeds from the alleged clandestine removal of goods. The Tribunal also noted inconsistencies in the Commissioner's findings regarding the search and seizure operations, particularly the incomplete search of the appellants' premises.

Conclusion:
The Tribunal set aside the impugned order and remanded the matter for fresh consideration, emphasizing the need for proper analysis of evidence, adherence to procedural requirements, and the opportunity for cross-examination. The Tribunal quashed the confirmation of demand and imposition of penalties, allowing the appeals and directing a re-evaluation of the case in accordance with the law and observations made in the judgment.

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