2006 (9) TMI 85 - HC - Central Excise

Whether any goods has been removed without payment of duty is basically a question of fact not a question of law so Tribunal s order on that is perverse No question of law arise Appeal dismissed

Summary

Issues:
1. Whether the duty demand based on clandestine removal of goods is legally correct.
2. Whether there is sufficient evidence to establish clandestine removal of goods.
3. Whether the Tribunal's finding on the duty demand is perverse.

Analysis:
1. The appeal questioned the legality of setting aside a duty demand and reducing penalties imposed by the Tribunal. The controversy revolved around the duty demand on the basis of clandestine removal of goods. The Tribunal considered the evidence, including statements from individuals and seized diaries, to assess the duty liability. Discrepancies in statements and lack of corroboration from merchant manufacturers raised doubts about the clandestine removal. The absence of independent evidence to establish the clearance of goods without duty payment led to the conclusion that the burden of proving clandestine removal was not discharged by the department. Consequently, the duty demand of Rs. 79,39,162/- was set aside.

2. The key issue was whether goods were removed without payment of duty, a factual determination. The Tribunal's analysis of the evidence and statements did not indicate perversity in its findings. The lack of substantial evidence to support clandestine removal and the failure to question merchant manufacturers about diary entries weakened the department's case. The decision to drop penalty proceedings against certain manufacturers further undermined the allegation of clandestine clearance. Ultimately, the Tribunal's finding was upheld, dismissing the appeal due to the absence of any substantial legal question arising from the case.

3. The judgment highlighted the importance of factual assessment in determining duty liability and clandestine removal. The Tribunal's decision was based on a thorough evaluation of the evidence and statements provided. The lack of concrete proof and inconsistencies in the department's case led to the dismissal of the appeal. The legal correctness of setting aside the duty demand and penalties hinged on the sufficiency of evidence, which the Tribunal found lacking. The judgment emphasized the need for corroborative evidence and the burden of proof in establishing clandestine activities to uphold duty demands.