2015 (11) TMI 895 - AT - Central Excise

Waiver of pre deposit - Clandestine removal of goods - Held that - Finding of clandestine removal and consequent confirmation of demand and imposition of penalties is solely based upon the disclosure of income made by the appellant before the Income Tax Authorities. The appellate authority has observed that such disclosure leads to presumption that such income was generated through illegal activities of manufacture. It is well settled law that clandestine removal has to be established by production of positive evidence. In the absence of any other evidence on record, some disclosure and surrender of income before the Income Tax authorities especially when the appellant had taken a ground that they were also doing other activities for generation of income, cannot held to be sufficient evidence so as to uphold the finding of clandestine activities in the absence of procurement of raw materials, actual manufacture of the goods and non-identity of the transporter and customer etc. - Decided in favour of assessee.

Summary

Issues:
1. Challenge to depositing duty on shortage of stock of marble
2. Demand based on disclosure of income before Income Tax Authorities leading to presumption of clandestine removal
3. Sufficiency of evidence to establish clandestine activities

Analysis:

Issue 1: Challenge to depositing duty on shortage of stock of marble
The Commissioner (Appeals) noted that the duty on the shortage of stock of marble along with penalty was not challenged and made part of the appeal. Therefore, this aspect did not require any discussion, and the order-in-original was upheld in this regard.

Issue 2: Demand based on disclosure of income before Income Tax Authorities leading to presumption of clandestine removal
The appellate authority based its finding of clandestine removal and imposition of penalties on the disclosure of income made by the appellant before the Income Tax Authorities. However, it was argued that such disclosure alone cannot be considered as sufficient evidence to establish clandestine activities. The absence of other evidence such as procurement of raw materials, actual manufacture of goods, and identification of transporter and customer raised doubts on the validity of the presumption. Citing legal precedents, it was emphasized that clandestine removal must be proven with positive evidence, and mere income disclosure is not conclusive.

Issue 3: Sufficiency of evidence to establish clandestine activities
The Tribunal referred to judgments from Punjab & Haryana High Court and other cases to support the contention that clandestine activities must be proven with concrete evidence. Relying on legal principles and lack of substantial proof beyond income disclosure, the Tribunal set aside the impugned order and allowed the appeal, granting consequential relief to the appellant. The stay petition was also disposed of accordingly.

In conclusion, the Tribunal emphasized the importance of concrete evidence in establishing clandestine activities and highlighted the insufficiency of income disclosure alone as a basis for confirming such activities. The judgment underscored the need for robust proof to support allegations of clandestine removal, ultimately leading to the decision to allow the appeal and provide relief to the appellant.