2015 (6) TMI 46 - AT - Central Excise

Duty demand - Clandestine removal of goods - Confiscation of seized goods - Imposition of redemption fine - Held that - Statements recorded from the Managing Partner and also from the Proprietor of SCM and Managing partner of AP & Sons, cannot be said to be recorded in duress or by force. These statements were voluntarily made by the deponents before the central excise officers. Even if any of the statements were retracted subsequently, it cannot be held as invalid as in the instant case none of the statements were retracted immediately. In the case of clandestine removal as evident from their modus operandi as discussed above, the respondent had cleverly master minded with the connivance of SCM and AP & Sons for clearance of the processed fabrics without accounting in their records without payment of duty and ensured all evidences are destroyed immediately after the transaction is complete. The department had clearly established from interception of van carrying fabrics and seizure of 11069.30 mts. dyed woven fabrics cleared without payment of duty and established past clearances with the ledgers, private records, white sheets and white papers of the respondent co. These white papers are not unsigned papers but they contain the details of quantity, colour and amount which are duly signed by Shri C. Manikandan, which was recovered from the supplier confirms the delivery of the processed fabrics and receipt of job charges in cash. Decision in the case of Commissioner of Central Excise, Mumbai Versus M/s. Kalvert Foods India Pvt. Ltd. & Ors. 2011 (8) TMI 24 - SUPREME COURT OF INDIA followed. Demand raised in the SCN dated 17.07.2001 is confirmed after allowing the cum-tax benefit and after applying correct rate of duty for 2000-2001 and on revised quantity for 2000-2001 in respect of clearance of goods to SCM - Demand of interest is confirmed under Section 11AB on the revised demand - Penalty imposed on the respondent M/s. SSP under Rule 173 Q of CER read with Rule 25 of CER under Section 11AC of CE Act equivalent to the revised demand - Decided partly in favour of assessee.

Summary

Issues Involved:
1. Alleged clandestine removal of dyed cotton woven fabrics without payment of duty.
2. Validity of statements and corroborative evidence.
3. Correct rate of duty and eligibility for cum-tax benefit.
4. Eligibility for modvat credit.

Detailed Analysis:

1. Alleged Clandestine Removal of Dyed Cotton Woven Fabrics Without Payment of Duty:
The case originated from a road check on 06.03.2001, where 11069.30 meters of dyed cotton woven fabrics were found being transported without valid documents. The fabrics were seized on suspicion of being processed and cleared clandestinely without payment of duty. Follow-up investigations revealed that the respondent had not accounted for these goods in their production register nor raised any invoices. Statements from various individuals, including the Managing Partner of the respondent company, confirmed that fabrics were cleared without payment of duty due to market pressures and customer demands.

2. Validity of Statements and Corroborative Evidence:
The Revenue argued that the statements recorded from various individuals, including the Managing Partner and employees of the respondent, clearly established the modus operandi of clandestine removal. The statements were corroborated by documents recovered from the suppliers (SCM and AP & Sons). The adjudicating authority, however, dropped the demand on the grounds that the case was based on statements that were retracted and lacked corroborative evidence. The Tribunal found this reasoning flawed, emphasizing that the statements were voluntarily made and supported by documentary evidence, such as white papers containing details of processed fabrics and job charges.

3. Correct Rate of Duty and Eligibility for Cum-Tax Benefit:
The respondent contended that the duty rate applied for the year 2000-2001 was incorrect and that they were eligible for cum-tax benefit. The Tribunal agreed, finding that the correct rate of duty for 2000-2001 was 16% (8% BED and 8% ADE) instead of 24%. The Tribunal directed the lower authority to recompute the duty amount accordingly and allowed cum-tax benefit on the total value.

4. Eligibility for Modvat Credit:
The respondent claimed eligibility for modvat credit on the input credit. The Tribunal rejected this claim, holding that the case involved clandestine removal with willful suppression of facts to evade excise duty, making them ineligible for such benefits.

Conclusion:
The Tribunal set aside the adjudicating authority's decision to drop the demand of Rs. 22,05,090/- and confirmed the demand after allowing cum-tax benefit and applying the correct rate of duty for 2000-2001. The Tribunal also confirmed the demand for interest under Section 11AB and imposed a penalty equivalent to the revised demand under Rule 173 Q of CER read with Rule 25 and Section 11AC of the Central Excise Act. The lower authority was directed to recompute the demand within 60 days, and the respondent was instructed to pay the revised penalty. The cross-objection filed by the respondent was disposed of, and the Revenue's appeal was allowed in the specified terms.