2013 (12) TMI 687 - AT - Central Excise

Clandestine removal of goods - Shortage of raw materials/finished goods Details given in computer print outs about the goods was in question - Burden to prove - Waiver of Pre-deposit Held that - Prima facie even though the computer printout has been retrieved from the premises of the applicant on 23.08.2008 it is quite necessary to show that the quantity of goods mentioned were cleared without payment of duty by adducing other corroborative evidence - the burden lies on the department - the Director accepted to removal of goods without payment of duty but the said statement cannot be extrapolated to allege that the details mentioned in the computer printout had been admitted to have been removed clandestinely without payment of duty by him. the Revenue could not place any corroborative evidence to support the allegation of manufacture and clearance of the goods mentioned in the computer printout without payment of duty from the factory premises of the Applicant to the persons - the issue of clandestine manufacture and clearance of goods without payment of duty rests on the appreciation of evidences adduced by both sides which would be weighed and analyzed in detail at the time of disposal of appeal Assessee directed to submit Rupees thirty five lakhs as pre-deposit upon such submission rest of the duty to be waived till the disposal partial stay granted.

Summary

Issues:
Waiver of pre-deposit of duty and penalty under Section 11AC of the Central Excise Act, 1944.

Detailed Analysis:

1. Waiver of Pre-Deposit:
The applicants sought waiver of pre-deposit of duty amounting to Rs.4.65 Crores and an equal amount of penalty under Section 11AC of the Central Excise Act, 1944, along with a penalty of Rs.10.00 lakhs on each director of the company under Rule 26 of the Central Excise Rules, 2002. The Advocate for the applicants argued against the demand of Rs.3.33 Crores, emphasizing the lack of evidence supporting the alleged clandestine removal of finished goods. The Department, however, claimed to have ample evidence, including private records and statements by the Director, supporting the removal of goods without payment of duty. The Tribunal found that while a computer printout (Annexure A-25) was retrieved from the premises of the applicant, there was a lack of corroborative evidence to establish the clandestine removal of goods mentioned in the printout. The burden of proof was deemed to lie on the Department, and the Tribunal directed the applicant to deposit Rs.35.00 lakhs within eight weeks, with non-compliance leading to dismissal of the appeals.

2. Allegations of Clandestine Removal:
The central issue revolved around the allegation of clandestine removal of approximately 10,000 MTs of finished goods as per the computer printout (Annexure A-25). The Advocate for the applicant contended that there was no substantial evidence to support this claim, highlighting discrepancies in the Department's case. The Tribunal noted that the Director of the company had admitted to some clearances of goods without duty payment due to market compulsion but found that this admission did not directly implicate the goods mentioned in Annexure A-25. Lack of concrete evidence linking the goods in question to clandestine removal led the Tribunal to rule in favor of the applicant, directing the deposit of a specified amount to stay the recovery of the remaining dues pending appeal.

In conclusion, the Tribunal's judgment focused on the lack of sufficient evidence to substantiate the allegations of clandestine removal of goods without payment of duty. The burden of proof was emphasized, and the Tribunal directed the applicant to make a specified deposit to stay the recovery of the remaining dues during the appeal process. The decision highlighted the importance of corroborative evidence in establishing claims of duty evasion and underscored the need for a thorough analysis of evidentiary support in adjudicating such cases.