2014 (4) TMI 46 - AT - Central Excise

Duty demand - Clandestine removal of goods - Held that - appellant was caught red handed in clearing two winch machines. Further, the statement of Managing Director is very clear, disclosing the name of the purchaser of clandestinely removed goods. The inquiries made at the end of buyer also supported the Revenue s case. The credit memos in the name of the appellants clearly reveal that they have received the payment of clandestinely removed goods from the buyers. As such, I find that there is sufficient material on record, corroborating each and every act, to uphold the finding of clandestine removal and consequent confirmation of demand - appellant have recovered more duty from their buyer and have paid less to the exchequer. The above finding are based on the invoices issued by the appellants. The said allegation was also not disputed by the appellant and as such, I find that the confirmation of demand on the above ground is in accordance with the law - Decided against assessee.

Summary

Issues:
Confirmation of demand of duty on the grounds of clandestine removal and imposition of penalty.

Analysis:
The judgment pertains to an appeal against the confirmation of demand of duty and imposition of penalty by the Commissioner (Appeals) on the grounds of clandestine removal. The appellant, engaged in manufacturing construction equipment, was found to have cleared goods without payment of duty. The officers seized two cranes loaded with winch machines from a distance outside the factory gate, which were believed to have been cleared without duty payment. The Managing Director of the appellant admitted to clearing the machines without payment of duty and also acknowledged clearing final products to a specific company without duty payment.

Investigations revealed that the mentioned company had indeed purchased goods without duty payment, with credit notes issued by the buyers being recovered. The proceedings initiated based on these findings were confirmed by various authorities, including the Commissioner (Appeals), leading to the present appeal. The appellate authority upheld the findings based on the clearance of winch machines outside the factory gate, the Managing Director's statement, and the recovery of credit notes. The Managing Director did not retract the statement, and the credit memos collectively showed excisable goods cleared without proper documentation.

The appellant raised concerns about the lack of a formal inquiry report provided to them as per an earlier Tribunal order. However, the original adjudicating authority noted that no formal inquiry was conducted at the buyer's end, and only investigations were carried out, supported by Xerox copies of ledger accounts, purchase orders, and delivery challans from the buyer. The appellant's insistence on a formal report was not favored due to the absence of such documentation.

The judgment dismissed the appellant's request for an inquiry report, citing sufficient evidence supporting the allegation of clandestine removal, including the clear statement by the Managing Director and corroborating inquiries with the buyer. Additionally, a demand of Rs.70,435 was confirmed based on the appellant recovering more duty from the buyer than paid to the exchequer, supported by undisputed invoices. Ultimately, the impugned orders were upheld, and the appeal was rejected.