2014 (3) TMI 788 - AT - Central Excise

Duty demand - Shortage in stock - Allegation of clandestine removal on the basis of admission before Income Tax Authority - Commissioner set aside demand and penalty - Held that - apart from surrendering of income to the Income Tax department, there is no iota of evidence to suggest that such excess income was on account of clandestine manufacture activity of the respondents. Even there is no such admission on the said ground by any of the assessee s authorized representative. In such scenario, we find no reason to hold that surrendered income was on account of clandestine manufacturing activity - Tribunal in the case of Ravi Foods Pvt. Ltd. v. C.C.E., Hyderabad - 2010 (12) TMI 290 - CESTAT, BANGALORE and C.C.E., Ludhiana v. Mayfair Resorts - 2011 (3) TMI 175 - PUNJAB AND HARYANA HIGH COURT has held that admission by assessee to Income Tax department as regards undisclosed/suppressed sales turnover cannot be held to be on account of clandestine removal of their final products, in the absence of any other corroborative evidence - Decided against Revenue.

Summary

Issues involved:
Appeal against dropping demand of duty, interest, and penalty by Commissioner (Appeals) after surrender of income to Income-tax department without evidence of clandestine activity.

Analysis:
1. Background and Facts: The respondents, engaged in manufacturing valves and cocks, voluntarily surrendered income and excise duty on undeclared income for construction of a factory building. The Revenue initiated proceedings alleging clandestine activity based on the surrendered income and statements of the assessee's representative.

2. Original Adjudication: The original adjudicating authority demanded excise duty of Rs. 4.96 lakhs despite dropping part of the demand. The Commissioner (Appeals) set aside the order due to lack of evidence linking the surrendered income to excisable goods' sale by the respondents.

3. Appellant's Argument: The Revenue contended that the surrendered income indicated clandestine manufacture and clearance of final products. They argued for setting aside the Commissioner's order based on precedents and the degree of probability, emphasizing the need for evidence.

4. Commissioner's Decision: The Commissioner (Appeals) found no evidence connecting the surrendered income to clandestine manufacturing. The decision was supported by the Tribunal's ruling in a similar case and the absence of incriminating admissions by the assessee's representative.

5. Tribunal's Analysis: The Tribunal upheld the Commissioner's decision, citing precedents like Ravi Foods Pvt. Ltd. v. C.C.E., Hyderabad, and C.C.E., Ludhiana v. Mayfair Resorts. It emphasized the necessity of corroborative evidence beyond mere admissions to establish clandestine removal.

6. Conclusion: The Tribunal rejected the Revenue's appeal, affirming the Commissioner's decision to set aside the demand of duty, interest, and penalty. The judgment highlighted the importance of concrete evidence to prove clandestine activities, aligning with established legal principles and precedents.

This detailed analysis of the judgment outlines the key issues, arguments presented, decisions made by the authorities, and the Tribunal's final ruling, providing a comprehensive understanding of the legal proceedings and outcomes.