2013 (7) TMI 709 - AT - Central Excise

Appellant clearing the goods did not exported the same Held that - Extent of examination done by learned Authority below show no export of goods made by the appellants - No export done came to record Also, for repeated absence of appellant Appellant has no evidence to prove and explain the shortage of goods and rebut the clandestine removal of goods Decided against the Assessee.

Summary

Issues:
1. Absence of the appellant during hearings leading to dismissal of appeals.
2. Lack of evidence of export of goods by the appellants.
3. Examination of shortage detected and failure to prove by the appellant.
4. Adjudication of demand in absence of appellant.
5. Lack of primary evidence to prove export and shortage of goods.

Absence of the Appellant:
The judgment highlights the repeated absence of the appellant during hearings, leading to the dismissal of appeals. The Tribunal noted the appellant's conduct of being absent for hearings, even after appeals were restored upon their request. Despite multiple notices and opportunities, the appellant failed to appear, with no adjournment application on record. This consistent absence was a significant factor in the decision to dismiss the appeals.

Lack of Evidence of Export:
The judgment discusses the examination conducted by the Authority below, which revealed a lack of evidence of export of goods by the appellants. Although the goods were cleared, there was no record of actual exports taking place. The Adjudicating Authority thoroughly examined this issue and concluded that the appellant failed to prove the export of goods, as well as the detected shortage during the inquiry. This lack of evidence played a crucial role in the adjudication process.

Examination of Shortage Detected:
The Authority below examined the issue of shortage detected during the inquiry, which the appellant could not substantiate. The adjudication order reflected the Authority's analysis from Para 22 to Para 29, highlighting how the appellant's clearance of goods did not align with actual exports. The inability to prove the detected shortage further weakened the appellant's case during the proceedings.

Adjudication in Absence of Appellant:
Despite the absence of the appellant, the Authority below adjudicated the demand based on the merits of the case. The judgment emphasizes that the adjudication was done reasonably, as evident from the order dated 29.9.2004. The grounds of appeal did not indicate any primary evidence presented by the appellant to establish export, absence of goods shortage, or lack of clandestine removal. The decision to adjudicate in the absence of the appellant was justified based on the available facts and circumstances.

Lack of Primary Evidence:
The judgment concludes by highlighting the lack of primary evidence provided by the appellant to support their claims of export and absence of goods shortage. Considering the absence of substantial evidence and the failure to address key issues in the appeals, the Tribunal found no alternative but to dismiss all three appeals. The decision was based on the appreciation of adjudication findings supported by cogent evidence and governing facts, indicating a lack of basis for overturning the lower authority's decision.