2016 (6) TMI 270 - AT - Central Excise

Clearance of trade samples without payment of duty - appellant found guilty of willful misstatement and suppression of facts - extended period was invoked and mandatory penalty also imposed - Held that - We find that at no stage the appellant admitted it had cleared samples during the impugned period without payment of duty. In the letter dated 30.07.2000 it submitted that in its earlier letter dated 16.08.2000 it was mentioned that samples prior to June 1997 might have been cleared from duty paid stock and that was the reason possibly for absence of any specific records about clearance of samples. We find that the SCN contains no evidence of duty free clearance of samples during the impugned period. As regards the contention of the ld. DR that in their statements the officials of the appellant admitted that they cleared samples duty free during the period October 1994 to June, 1997, suffice to say that even if that was the case, it does not conclusively establish that there were clearances of samples duty free during impugned period which is November 1995 to May, 1997 inasmuch as the statements will not be wrong if the samples were cleared say in the period Oct., 1994 to Oct., 1995 because this period is contained in the period October 1994 to June, 1997. Assumption has been made that the appellant cleared samples duty free during the impugned period at the same level at which samples were found to have been cleared during subsequent period June, 1997 to March, 1999. We find no basis to sustain that assumption in the wake of assertion of the appellant that it has cleared no samples duty free during the impugned period and Revenue having failed to produce any documentary evidence of even a single such samples having been cleared by the appellant during the relevant period. Thus the impugned demand has been confirmed on the basis of an assumption without any corroborative evidence to sustain such assumption - Decided in favour of assessee.

Summary

Issues:
1. Confirmation of demand for cleared trade samples without duty payment.
2. Allegations of willful misstatement and suppression of facts.
3. Basis for confirming the demand without concrete evidence.
4. Legal principles regarding willful misstatement and suppression of facts.

Issue 1: Confirmation of demand for cleared trade samples without duty payment
The appeal was filed against an order confirming a demand of Rs. 7,13,528 for clearing trade samples without paying duty during a specific period. The appellant denied clearing any samples without duty payment during the impugned period. The Revenue estimated the samples cleared during the period based on subsequent data, which the appellant contested as unfounded assumptions without evidence.

Issue 2: Allegations of willful misstatement and suppression of facts
The appellant refuted allegations of willful misstatement and suppression of facts. The Revenue claimed that officials admitted to not paying duty on samples between certain dates. However, the tribunal noted that even if such admissions were made, they did not conclusively prove duty-free clearances during the relevant period. The tribunal highlighted the lack of evidence supporting the allegations and cited legal precedents emphasizing the need for concrete proof in such cases.

Issue 3: Basis for confirming the demand without concrete evidence
The tribunal found that the demand was based on assumptions without corroborative evidence. Revenue calculated the demand percentage based on samples cleared in a subsequent period, which the appellant vehemently denied for the impugned period. The tribunal emphasized that demands cannot be sustained on assumptions and presumptions alone, requiring concrete evidence to support allegations.

Issue 4: Legal principles regarding willful misstatement and suppression of facts
Citing legal precedents, the tribunal emphasized the burden on Revenue to prove willful misstatement and suppression of facts. Mere non-payment of duties was not equated with collusion or willful misstatement. The tribunal highlighted the inadequacy of evidence in the show cause notice to sustain such serious allegations, ultimately leading to the demand being hit by time bar and the appeal being allowed.

In conclusion, the tribunal found the impugned order unsustainable due to lack of concrete evidence and unfounded assumptions, ultimately allowing the appeal in favor of the appellant.