2014 (9) TMI 708 - AT - Central Excise

Clandestine removal of goods - Imposition of penalty - Held that - Revenue s sole reliance is on the commercial invoices raised by M/s. Dolsun Containers, without their being any other evidence to reflect upon unaccounted manufacture and clandestine clearance of the goods. The respondents have explained the reason for raising of such commercial invoices, which relates to previous clearances made under the cover of statutory Central Excise invoices. It is well settled that clandestine removal has to be proved by production of sufficient, positive and tangible evidence. There is virtually no evidence on record. As such, I am of the view that Commissioner (Appeals) has rightly accepted the stand of the respondents and has rightly dropped the demand. no reason to interfere in the impugned order of Commissioner (Appeals) - Decided against Revenue.

Summary

Issues:
1. Alleged clandestine clearances based on commercial invoices.
2. Adequacy of evidence to prove clandestine removal.
3. Commissioner (Appeals) decision in favor of the assessee.

Analysis:
1. The Revenue alleged that M/s. Dolsun Containers received payments through commercial invoices from M/s. Samcor Glass Ltd., which were not issued from their statutory invoice book, leading to suspicions of clandestine clearances. Show cause notice proposed duty confirmation and penalties. The original adjudicating authority confirmed the demands and imposed penalties.

2. On appeal, the Commissioner (Appeals) set aside the order, noting that M/s. Dolsun Containers had supplied goods to M/s. Samcor Glass Ltd. under statutory invoices with appropriate excise duty, but payments were not made. To recover outstanding amounts, commercial invoices were raised, and subsequently, four letters of credit were issued by M/s. Samcor Glass Ltd. The Commissioner found no evidence of unaccounted manufacture or clandestine clearance, citing the absence of proof beyond commercial invoices.

3. The Tribunal upheld the Commissioner's decision, emphasizing the necessity of concrete evidence to establish clandestine removal. The Tribunal highlighted the precedent in Arch Pharma Labs Ltd. v. CCE, where the mere issuance of commercial invoices was insufficient to prove clandestine removal. The Tribunal concurred that without substantial evidence, the Revenue's reliance on commercial invoices alone was insufficient to support the allegations of clandestine clearances. Consequently, the Tribunal rejected the Revenue's appeals, affirming the Commissioner (Appeals) decision in favor of the assessee.