2015 (7) TMI 458 - AT - Central Excise

Clandestine manufacture and removal of goods - documents recovered from the third party, which are not accepted by the appellant - Held that - For the purpose of clandestine removal, there has to be clandestine manufacture. We find on perusal of the record, that the Revenue authority, despite having engaged themselves in massive investigation, has not brought on record a single evidence of procurement of other major raw materials required for manufacture of Frit, either in the form of entries in the books of accounts or in the form of statements of supplier of the other major raw materials. It is undisputed that for manufacturing of Frit (the final product) major raw material is Quartz which is approximately 45% of the total inputs going in the manufacturing of Frit . We find from the records that Revenue has not produced a shred of evidence, to indicate that the appellant had been procuring Quartz without accounting them in books of account nor is there any evidence to indicate that other raw materials were also procured without recording them in books of accounts. There has to be an illicit manufacture of goods to indulge in clandestine removals for which extra raw-material, extra manpower, transportation of finished goods, cash payments etc are required to be established with a reasonable degree. In the absence of any corroboration on above factual details, the case of clandestine removals cannot be held as established on the basis of few parallel invoices recovered from a third party. Impugned orders demanding duty as alleged clandestine removal with equal penalty deserves to be set aside. However, duty demand of ₹ 24,905/- in respect of shortage of finished goods found at the time of search of factory on 3.7.2001 is required be confirmed with equal penalty. Penalty imposed on Shri Manan K Shan, Director of the main appellant, is also set aside as on merit appeal has been predominantly decided in favour of the main appellant. - Decided partly in favour of assessee.

Issues Involved:
1. Clandestine manufacture and removal of goods.
2. Adequacy of evidence provided by the Revenue.
3. Validity of unsigned documents and documents recovered from third parties.
4. Applicability of extended period of time limitation.
5. Imposition of penalties on the main appellant and its Director.

Detailed Analysis:

1. Clandestine Manufacture and Removal of Goods:
The main appellant, M/s Zircon Plastics (P) Ltd., was accused of clandestine manufacture and removal of HGPE/LLDPE bags under Chapter 39 during 1999-2000. The Revenue's case was based on the discovery of 23 sets of blank invoices, treated as parallel invoices, during a search on 3.7.2001. The show cause notice dated 5.12.2003 alleged clandestine removals and proposed recovery of duty amounting to Rs. 25,96,596/- and Rs. 24,909/- along with interest and penalties.

2. Adequacy of Evidence Provided by the Revenue:
The appellant argued that the Revenue failed to provide copies of the relied-upon parallel invoices despite the Tribunal's order. The Senior Advocate emphasized that tangible evidence is required to establish clandestine manufacture and clearance, such as excess raw materials, actual removal of unaccounted finished goods, and receipt of sales proceeds. The entire demand was based on alleged parallel invoices mentioned in Annexure A-1, B-1, and C-1 of the SCN, but no tangible evidence was provided to support the receipt of excess raw materials, clandestine manufacture, or removal of goods.

3. Validity of Unsigned Documents and Documents Recovered from Third Parties:
The appellant contended that unsigned documents and documents recovered from third parties cannot be considered valid evidence. The Tribunal observed that the demand of duty was based on parallel invoices, but none of these invoices were found from the factory. Only a few invoices were recovered from buyers, but these documents lacked evidential value without independent corroborative evidence. The Tribunal also noted the absence of evidence showing the flow back of money from buyers to the appellant, which is crucial to establish clandestine removals.

4. Applicability of Extended Period of Time Limitation:
The appellant argued that the extended period of time limitation is not applicable in this case. The Tribunal referred to various case laws supporting the contention that clandestine removal cannot be upheld merely on the basis of unsigned documents and documents found from third parties. The Tribunal found that the Revenue failed to produce any material corroborating the parallel invoices, and hence the demand of duty based on these invoices was not sustainable.

5. Imposition of Penalties on the Main Appellant and its Director:
The Tribunal observed that the case against the appellant was not proved beyond a reasonable doubt. The Tribunal set aside the duty demand of Rs. 25,96,596/- and the equal penalty imposed on the main appellant. However, the duty demand of Rs. 24,905/- in respect of the shortage of finished goods found during the search was confirmed along with an equal penalty. The penalty imposed on the Director, Shri Manan K Shah, was also set aside.

Conclusion:
The Tribunal allowed the appeals filed by the appellants to the extent indicated, with consequential relief. The serious charge of clandestine production and illicit removal of goods was not proved beyond reasonable doubt due to the lack of tangible evidence and corroborative support. The Tribunal emphasized that suspicion, however grave, cannot take the place of evidence. The duty demand of Rs. 24,905/- for the shortage of finished goods was confirmed, but the larger duty demand and penalties were set aside.

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