2017 (1) TMI 13 - AT - Central Excise

Clandestine removal - Penalty - Held that - it is noticed that appellant is unable to dislodge the findings. There is no dispute that the consignment of Gutkha Pan Masala which was intercepted on 19th November, was non-duty paid consignment; in the instant case despite being given an opportunity to prove they have discharged the duly liability on goods cleared prior to 19th November, 1998, appellant had failed miserably to do so - Appeal rejected - decided against the assessee.

Summary

Issues:
Clandestine removal of Gutkha Pan Masala without payment of duty, violation of natural justice principles, reliance on statements of various persons, burden of proof on department, confirmation of demand, penalty, and confiscation.

Analysis:

1. Violation of Natural Justice Principles:
The appellant contended that the order was passed without following the principles of natural justice and without proper application of mind. They argued that the case was solely based on statements of various persons, and they were denied the opportunity to cross-examine these individuals. The appellant highlighted the lack of concrete evidence other than statements. The lower authorities were accused of making assumptions and presumptions without substantial proof.

2. Reliance on Statements of Various Persons:
The department's case heavily relied on statements of different individuals indicating clandestine removal of goods. The appellant challenged this reliance, emphasizing the need for the department to establish the allegation of clandestine removal with concrete evidence. The appellant cited relevant case laws to support their argument and questioned the lack of burden discharge by the department in this regard.

3. Confirmation of Demand, Penalty, and Confiscation:
The first appellate authority upheld the demand of duty, penalty, and confiscation based on the statements provided by various persons. The authority considered these statements as valid evidence under the Central Excise Act, noting that they were corroborative and voluntary. The appellant failed to prove the discharge of duty liability on earlier consignments, leading to the confirmation of demand and penalty. The confiscation of goods seized during interception was also upheld, while the confiscation of other assets was set aside.

4. Burden of Proof and Legal Compliance:
The appellate tribunal, after considering submissions from both sides, concluded that the issue revolved around the clandestine removal of Gutkha Pan Masala without payment of duty. The appellant's failure to provide evidence of discharging duty liability on earlier consignments strengthened the findings of the lower authorities. The tribunal found the impugned order legally sound and devoid of any infirmity, ultimately rejecting the appeal.

In conclusion, the judgment upheld the decision of the lower authorities regarding the clandestine removal of goods, confirming the demand, penalty, and confiscation. The appellant's arguments regarding natural justice principles and burden of proof were considered but deemed insufficient to overturn the decision. The tribunal emphasized the importance of concrete evidence in establishing duty liabilities and upheld the legality of the order.