2016 (5) TMI 777 - AT - Central Excise

Clandestine removal of manufactured goods - Demand of duty along with interest and penalty - Evasion of duty - Kachcha slips recovered during investigation which were not signed at all - Some exculpatory and some inculpatory statements were recorded - Denial of cross examination of persons whose statements are inculpatory - Appellant submitted that while manufacturing MS ingots, the appellant consumed electricity 900 to 1000 units for manufacture of 1 MT MS ingots whereas the allegation of clandestine clearance of the goods is considered less than the electricity consumption worked out to 490 units per MT which is not possible in any circumstance. Held that - in the absence of any corroborative evidence towards clandestine manufacture and clearance of the finished goods by the appellant. Moreover without verifying the activity of trading undertaken by the appellants on the basis of eye estimation of stock, the demand confirmed in the impugned order are not sustainable. Therefore, the impugned order is set aside. - Decided in favour of appellant with consequential relief

Issues Involved:
1. Allegation of clandestine removal and manufacture of goods.
2. Evidence based on kachcha slips and statements.
3. Denial of cross-examination.
4. Electricity consumption and production capacity.
5. Statements of buyers and raw material suppliers.
6. Stock reports and eye estimation.
7. Allegations of cash transactions.
8. Lack of corroborative evidence.

Issue-wise Detailed Analysis:

1. Allegation of Clandestine Removal and Manufacture of Goods:
The appellants were accused of evading duty through clandestine removal and manufacture of goods. The case was built on intelligence received by the DGCEI, leading to searches and the recovery of documents and kachcha slips indicating unaccounted transactions.

2. Evidence Based on Kachcha Slips and Statements:
The primary evidence against the appellants was kachcha slips and statements from various parties, including the director, broker, and raw material suppliers. The appellants argued that these slips were unsigned and the statements were either exculpatory or inculpatory, with the latter not being subjected to cross-examination.

3. Denial of Cross-Examination:
The appellants requested cross-examination of individuals whose inculpatory statements were used against them, but this was denied by the adjudicating authority. This denial was a significant point of contention, as it impacted the credibility and admissibility of the statements.

4. Electricity Consumption and Production Capacity:
The appellants contended that the electricity consumption figures used to allege clandestine production were unrealistic. They argued that the consumption of 900 to 1000 units per MT of MS ingots was typical, while the department's allegations were based on an improbable 490 units per MT. The adjudicating authority did not adequately consider this argument, which was crucial in determining the feasibility of the alleged clandestine manufacture.

5. Statements of Buyers and Raw Material Suppliers:
The appellants highlighted inconsistencies and identical wording in the statements of 16 buyers, which were not cross-examined. Additionally, only statements from two raw material suppliers and one broker were recorded, which were insufficient to substantiate the large-scale clandestine manufacture alleged.

6. Stock Reports and Eye Estimation:
The stock discrepancies noted during the investigation were based on eye estimation rather than actual weighment. The appellants argued that this method was unreliable, especially considering the minimal shortages and excesses found.

7. Allegations of Cash Transactions:
The department alleged that cash transactions recorded in kachcha slips were proceeds from clandestine sales. The appellants countered that these transactions were related to their trading activities and normal trade practices, including cash advances and post-dated cheques.

8. Lack of Corroborative Evidence:
The judgment emphasized the need for tangible and corroborative evidence to substantiate charges of clandestine manufacture and removal. The department failed to investigate critical aspects such as excess production details, raw material purchases, dispatch particulars, sale proceeds, and power consumption. The absence of such evidence rendered the allegations unsustainable.

Conclusion:
The tribunal found that the department did not meet the burden of proof required to substantiate the serious charge of clandestine removal and manufacture. The reliance on kachcha slips and uncorroborated statements, denial of cross-examination, unrealistic electricity consumption figures, and lack of comprehensive investigation led to the conclusion that the demand for duty and penalties was not sustainable. Consequently, the impugned order was set aside, and the appeals were allowed with consequential relief.

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