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2016 (11) TMI 156 - AT - Central ExciseClandestine removal - Evasion of duty - Search - Demand of duty - Held that - the edifice of the entire case booked by the department rests on the statements obtained from various persons and private records / private diaries recovered from the alleged agent broker of assessee and PTC Sri. D. Ravinder - Adjudicating authority himself has taken note of the cross examination of the investigating officer who admitted that except for four parties, no statement from other 102 parties were recorded - In cases alleging clandestine manufacture and clearance, the department is required to prove its case with tangible and cogent evidence. Merely basing all the allegations on statements, that too of miniscule number of buyers /consumers (4 out of 102), is certainly not corroborative evidence - Appeal dismissed.
Issues Involved:
1. Allegation of clandestine removal of cotton yarn. 2. Demand of duty based on Sircilla Yarn Merchants Association (SYMA) receipts. 3. Denial of SSI exemption due to alleged clandestine clearances. 4. Penalties imposed on the assessee and associated individuals. Issue-Wise Detailed Analysis: 1. Allegation of Clandestine Removal of Cotton Yarn: The assessee, Rama Spinners Private Limited, was accused of clandestinely removing cotton yarn without payment of duty and selling it through Pramod Trading Company (PTC), which in turn sold the goods to various parties. The department's investigation included searches and the recovery of documents, leading to a show cause notice demanding ?1,52,88,381/- in Central Excise duty. The assessee argued that the department failed to prove the clandestine removal, as there was no investigation into the procurement of raw materials or consumption of electricity to substantiate the claim. The adjudicating authority found that the department did not provide conclusive evidence to prove the clandestine removal, as the private diaries and statements did not irrefutably link the transactions to the assessee or PTC. Consequently, the demand of ?12,10,497/- was not upheld. 2. Demand of Duty Based on SYMA Receipts: The department demanded duty based on the receipts from Sircilla Yarn Merchants Association (SYMA), relying on the statement of its ex-president, Sri Botla Venkataswamy. The assessee contended that the department did not verify the correctness of this statement with any purchasers and did not confront the assessee with this issue during the investigation. The adjudicating authority recalculated the demand but still based it on the unverified statement of Sri Venkataswamy. The Tribunal found that relying solely on this statement without corroborative evidence was insufficient to uphold the demand of ?21,10,473/-. 3. Denial of SSI Exemption Due to Alleged Clandestine Clearances: The department denied the Small Scale Industry (SSI) exemption to the assessee, alleging that the value of clearances exceeded the limit due to clandestine removals. The assessee argued that if the previous demands were found to be unsustainable, they would remain within the SSI limit, and no duty would arise. The Tribunal agreed, noting that the demands were not substantiated with sufficient evidence, and thus, the denial of SSI exemption was not justified. 4. Penalties Imposed on the Assessee and Associated Individuals: Penalties were imposed on the assessee and associated individuals, including the Managing Director and the Proprietor of PTC. The assessee argued that the department failed to establish the allegations, making the penalties unjust and without legal basis. The Tribunal found that the department did not provide tangible evidence to support the allegations of clandestine removal and other charges. Consequently, the penalties imposed were set aside. Conclusion: The Tribunal concluded that the department did not provide sufficient and tangible evidence to substantiate the allegations of clandestine removal and other charges. The demands based on presumptions and assumptions were not upheld. The appeals filed by the assessee and associated individuals were allowed with consequential benefits, and the department's appeal was dismissed. The penalties imposed on the assessee and others were also set aside.
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