2012 (1) TMI 132 - AT - Central Excise

Waiver of pre-deposit of duty and identical amount of penalty - goods recovered from the Kerala dealer indicated the manufacturer of the goods either located in Jodhpur or at A-248 DSIDC Narela Delhi - Held that - Admittedly the factory of the appellant is located at E-679 DSIDC Industrial Area Narela Delhi. Surprisingly no investigations were conducted from the manufacturer located at A-248 DSIDC Narela Delhi or at their Jodhpur factory. As such we find that though there is evidence to show that the recovery from the dealer revealed the manufacturer located at A-248 DSIDC Narela Delhi or at Jodhpur they were neither visited by the officers nor questioned. There is no direct statement or any direct evidence indicating that the goods stands manufactured by the appellant s factory located at E-679 DSIDC Industrial Area Narela Delhi - recovery of records from the booking agent as well as railway receipts mentioning only quantity without any reference to name of consignor or consignee can be made the ground for demand on clandestine removal is appropriate - Following decision of Sunrise Foods Products 2008 (9) TMI 729 - CESTAT NEW DELHI - Stay granted.

Summary

Issues:
Prayer to dispense with pre-deposit of duty and penalty amount - Evidence of manufacturing Bombay-1000 gutkha - Investigation discrepancies - Lack of direct evidence linking goods to appellant's factory - Reference to clearances at Jodhpur factory - Unnamed booking in Railways - Amount already deposited by the appellants.

Analysis:
The judgment revolves around the prayer to dispense with the pre-deposit of duty and penalty amount confirmed against the appellants. The appellants were engaged in manufacturing gutkha under the brand name "Bombay-1000" at their factory in Delhi. The investigation revealed discrepancies as no incriminating account was found during the search. Goods recovered from dealers in Kerala indicated different manufacturers, including one located at A-248, DSIDC, Narela, Delhi, and another in Jodhpur. However, no direct evidence linked the goods to the appellant's factory in Narela, Delhi.

During the proceedings, it was noted that the reference to the appellant's authorized representative statement pertained to clearances at the Jodhpur factory, which was not the subject of the present proceeding. The Tribunal found the link between unnamed bookings in the Railways and the appellant's factory without direct evidence to be uncalled for. The Tribunal considered the appellants' evidence from a previous case where an unconditional stay was granted, emphasizing the need for substantial evidence in such matters.

Moreover, the appellants had already deposited a significant amount of the total demand confirmed against them. Considering this deposit and the prima facie nature of the case, the Tribunal decided to dispense with the pre-deposit condition for the balance amount of duty and penalties, staying their recovery during the appeal's pendency. The judgment highlighted the importance of substantial evidence and proper investigation in establishing liability in such cases, ultimately granting relief to the appellants based on the circumstances presented before the Tribunal.