2012 (9) TMI 863 - AT - Central Excise

Duty demand - Goods searched and seized - Confiscation of Pan Bahar Pan Masala and Bahar Gutaka - - No claimant of seized goods - Held that - entire case of Revenue is based upon the fact that Shri Jai Gopal, the buyer of the goods could not produce the invoices showing legal purchase of the same. Apart from above, there is no other evidence indicating clandestine clearance from the factory itself. In fact Shri Ashok Jain, Director of the manufacturing unit had very clearly deposed in his statement recorded during the investigation that all the goods stands cleared from their factory on payment of central excise duty and under the cover of proper invoices. He has also produced his record showing licit clearance of the goods. It is well settled that the allegation of clandestine removal are required to be upheld on the basis of positive and tangible evidences and not on the basis of doubts - Decided against Revenue.

Summary

Issues:
Confirmation of demand against M/s. Ashok & Co. Pan Bahar Ltd., penalty imposition on its Director and Grand Panyan Traders.

Analysis:
The Revenue filed three appeals against the Commissioner (Appeals) order setting aside the confirmation of demand and penalty imposition. The case involved the recovery of 'Pan Bahar Pan Masala and Bahar Gutaka' valued at Rs. 17,28,200 from a godown in Delhi. The goods were handed over to a worker as nobody claimed them during seizure. The Director of M/s. Ashok & Co. stated ignorance about the goods' recovery and suggested they might have been stored by a purchaser. Subsequently, M/s. Grand Panyan claimed ownership and provided relevant documents, leading to the provisional release of goods. The Revenue initiated proceedings based on discrepancies in statements and invoices, culminating in a demand of Rs. 5,18,128 and penalty imposition. However, the Commissioner (Appeals) set aside the order, prompting the Revenue's appeal.

The appellate authority noted that the Director's statements were exculpatory, while the buyer's statement was not incriminating. Without evidence of goods clearance without duty payment, demand confirmation and penalty imposition were deemed unjustifiable. The Revenue's case relied on the buyer's inability to produce invoices, with no other evidence of clandestine clearance from the factory. The Director affirmed all goods were cleared with duty payment and proper invoices, supported by records. Allegations of clandestine removal require concrete evidence, not mere doubts. Consequently, the Commissioner (Appeals) rightly overturned the original adjudicating authority's decision. The Revenue's appeal was dismissed, affirming the Commissioner's order.

In conclusion, the judgment addressed the issues of demand confirmation against M/s. Ashok & Co. Pan Bahar Ltd., and penalty imposition on its Director and Grand Panyan Traders. It emphasized the necessity of concrete evidence in allegations of clandestine removal and upheld the Commissioner (Appeals) decision based on the lack of incriminating proof. The judgment highlighted the importance of exculpatory statements and proper documentation in excise duty cases, ultimately rejecting the Revenue's appeal.