2016 (2) TMI 362 - AT - Central Excise

Demand of duty along with interest and penalties - clearance of Chewing Tobacco clandestinely under the guise of naswar (Sniff) - Held that - No investigation has been conducted from the consignees in the case of 46 RRs. The statement of Shri Sanjeev Kumar recorded on 01.12.2007 cannot be relied upon as on the said day Shri Sanjeev Kumar was in police custody and not in the custody of the Departmental officers. Therefore said statement cannot be said to be recorded under section 14 of the Central Excise Act 1944. The statement dated 17.07.2009 does not reveal any inculcatory statement. Therefore the said statement cannot be the basis of confirmation of demand against the appellants. Moreover department has not relied on the said statement. There is no corroboration of RRs with any tangible evidence to allege that appellants have cleared goods clandestinely in the guise of naswar on the strength of RRs recovered from railways on 09.04.2012. Therefore impugned proceedings are not sustainable against the appellants. Moreover Revenue has exonerated Shri Purshottam Kumar against whom penalty has been imposed by the Adjudicating Authority observing that his name does appear on few RRs covering clandestine transaction but there has not been any other evidence or statement that would substantiate his role in clandestine removal. Admittedly there is no other evidence or statement which can substantiate the case of the Revenue against the appellants. - Decided in favour of assessee.

Summary

Issues:
Appeal against demand of duty, interest, and penalties for clearance of Chewing Tobacco under the guise of naswar, reliance on statements and recovered documents, imposition of penalties on appellants.

Analysis:
The case involved appeals against the demand of duty, interest, and penalties imposed on the appellants for clandestinely clearing Chewing Tobacco under the guise of naswar, along with penalties. The investigation stemmed from a search where goods declared as Naswar were found to be Chewing tobacco. The case was built on recovered documents like forwarding notes and railway receipts (RRs). The show cause notice relied on statements of the appellants and documents recovered. The Adjudicating Authority confirmed duty against Shri Janak Raj, dropped penalties on Shri Purshottam Kumar, and imposed a penalty on Shri Sanjeev Kumar. Appeals were filed against this order.

The authorized representative of the appellants argued that the case was based on a previous investigation and statements recorded in police custody should not be relied upon. He highlighted discrepancies in the RRs and lack of investigation into the consignees mentioned. The representative contended that the impugned order was not sustainable in law and should be set aside.

On the other hand, the Revenue supported the impugned order, stating that the appellants were involved in clandestine activities based on previous proceedings where demands were confirmed and accepted. The Revenue argued that no further proof was required in the current proceedings.

After hearing both parties, the Member (Judicial) analyzed the case. It was noted that the basis of the case in the impugned proceedings differed from the earlier investigation. The RRs mentioned were inconsistent, and no investigations were conducted with the consignees. The statements of Shri Sanjeev Kumar were deemed unreliable as they were recorded in police custody. Lack of corroboration between RRs and tangible evidence to prove clandestine clearance was highlighted. The impugned proceedings were deemed unsustainable against the appellants. The Revenue's exoneration of Shri Purshottam Kumar further weakened the case. Ultimately, the impugned order was set aside, and the appeals were allowed with consequential relief, if any.

In conclusion, the judgment focused on the inconsistencies in the evidence, unreliability of statements, and lack of substantiating proof for the Revenue's case, leading to the setting aside of the impugned order and allowing the appeals.