2008 (7) TMI 310 - HC - Central Excise

Assessee installed new machinery & informed the dept. as to the optimum yield that could be achieved no material on record to conclude that the machine is yielding optimum production immediately upon installation - denial of credit on inputs used in mfg. of goods which had been lost, could not be upheld optimum yield was not achieved held that no case for clandestine removal of goods was made out as there is no any evidence to show movement of large quantities of goods appeal dismissed

Summary

Issues:
1. Rejection of findings by CESTAT based on lack of evidence for clandestine removal charges.
2. Ignoring settled law by CESTAT regarding burden of proof in quasi-judicial proceedings.

Issue 1: Rejection of findings by CESTAT based on lack of evidence for clandestine removal charges:
The case involved a Show Cause Notice alleging illicit removal of goods based on discrepancies in production records. The Adjudicating Authority raised a demand of Rs.3,79,583, which was upheld by the Commissioner (Appeals). The Tribunal noted that the notice was based on the declaration of adopting new technology to improve production, but there was no evidence that the new machine immediately achieved higher production. The Tribunal emphasized that trial runs after installing new machinery do not always yield optimum production. It was observed that a significant amount of raw material was lost in nine batches, indicating that the production did not increase as expected. The Tribunal held that there was no evidence to support the alleged excess unaccounted production, and the onus was on the Department to prove clandestine removal, which was not established.

Issue 2: Ignoring settled law by CESTAT regarding burden of proof in quasi-judicial proceedings:
The Appellant argued that the respondent had initially informed the Revenue about the expected yield from new technology, and the Adjudicating Authority correctly calculated the quantity of goods removed clandestinely based on this information. However, both the Commissioner (Appeals) and the Tribunal found that the new machinery did not immediately achieve the projected production levels. The Tribunal highlighted that there was no evidence of large quantities of unaccounted production being moved. It was noted that the Tribunal's findings were based on an evaluation of the evidence and did not raise any substantial question of law for interference. Consequently, the Tribunal dismissed the appeal, affirming that there was no basis for inferring clandestine removal of goods due to lack of evidence supporting such claims.

In conclusion, the Tribunal dismissed the appeal, upholding its findings that there was insufficient evidence to prove clandestine removal charges and that the burden of proof was not met by the Department. The judgment emphasized the importance of concrete evidence in establishing allegations of illicit activities and highlighted the need for thorough evaluation of facts in quasi-judicial proceedings.