2016 (11) TMI 11 - AT - Central Excise

Imposition of penalty u/r 25 of the Central Excise Rules - 100% EOU - spices - duty free import of cloves for use in the manufacture of spices - violation of the provisions of Export Import Policy, 2002-2007 read with Foreign Trade (Regulation) Rule 1993, Customs Act, 1962 and Central Excise Act, 1944 - alleged diversion of 130.31 M.T. of imported cloves - Held that - for making such allegation, some positive evidence should have been brought on record by the Revenue. The allegation is sought to be sustained by the various inferences like respondent not using adequate power, certain sales in DTA not admitted by the buyers, certain transports not evidenced, etc. These evidences can at best act as corroboration to a positive evidence of diversion. Otherwise, in the absence of any positive evidence, these pieces of alleged corroboration cannot by themselves legally sustain the allegation of diversion of huge quantity of imported duty free cloves. In the appeal, the Revenue has not brought out any material evidence, which will prompt us to interfere with the impugned order. We find no reason to arrive at a different conclusion based on the evidences analyzed by the Original Authority. Imposition of penalty on Shri Deepak Kumar Agarwal who is a major buyer of the product manufactured by the respondent company u/r 26 of the Central Excise Rules, 2002 - he tried to mis-lead the Department and hamper the investigation by creating firms in the name of dummy owners and in collusion with others - Held that - in view of the main conclusion arrived at by the Original Authority, no penalty could be imposed on Shri Deepak Kumar Agarwal and as such, we find that there is no merit in the appeal filed by the Revenue on this ground also. Appeal dismissed - decided against Revenue.

Summary

Issues: Alleged diversion of duty-free imported items, imposition of excise duty, penalty on directors, imposition of penalty on an individual.

In this case, the Revenue appealed against the order of the Commissioner of Central Excise, Delhi-I, alleging that the respondent, a 100% EOU engaged in the manufacture and export of spices, diverted duty-free imported cloves and did not utilize them for the intended purpose. The Revenue sought to demand customs duty and recover short-paid central excise duty on advance DTA sales. The Original Authority found no evidence to sustain the diversion allegation but held the respondent liable for excise duty on clearance to DTA and imposed penalties. The Revenue contended that all facts were not considered, and there was no evidence of transportation to outstation buyers or satisfactory establishment of product manufacture. The Tribunal noted the presence of a significant quantity of final product during verification and upheld the Original Authority's findings, emphasizing the lack of positive evidence for diversion. The Tribunal found no reason to interfere with the impugned order based on the evidence analyzed.

Regarding the penalty on Shri Deepak Kumar Agarwal, the Tribunal acknowledged the lack of a specific finding by the Original Authority. It was revealed that Shri Deepak Kumar Agarwal faced allegations of misleading the Department and hindering the investigation. However, due to the main conclusion reached by the Original Authority, no penalty could be imposed on him. Consequently, the Tribunal dismissed the Revenue's appeal, upholding the decision of the Original Authority regarding the diversion allegation and the penalty on the individual.