2017 (1) TMI 84 - AT - Central Excise

Evasion of duty - Clandestine removal - Held that - in the case of Continental Cement Company Vs. Union of India 2014 (9) TMI 243 - ALLAHABAD HIGH COURT that clinching evidence is required of purchase of raw material, use of extra electricity, sale of final products, clandestine removal transportation, payment, realization of sale proceeds, mode and flow back of funds. Further, the court has held that clandestine clearance is a serious charge and demand cannot be confirmed based on presumptions and assumptions. We are of view that Hon ble Allahabad High Court will be applicable here. In the absence of any suitable evidence, we find that the demand of excise duty cannot be sustained - Appeal allowed.

Summary

Issues:
- Alleged evasion of Central Excise Duty through clandestine removal of Gutkha
- Confirmation of duty demand based on Railway Receipts
- Reliance on evidence such as Panchanamas, statements, and documents
- Imposition of penalties on the appellants
- Appeal challenging the duty demand and penalties

Analysis:
1. Alleged Evasion of Central Excise Duty: The case revolved around the suspicion of evasion of Central Excise Duty through clandestine removal of Gutkha manufactured by the Appellant. The investigation included searches at various premises, recording statements of involved parties, and seizing incriminating evidence such as empty boras with Railway markings and unaccounted goods bearing the manufacturer's address.

2. Confirmation of Duty Demand: The duty demand amounting to ?3,81,64,415 was based on Railway Receipts recovered from different stations in Kerala, indicating goods booked from Wazirpur Industrial Area. The appellants argued that the Railway Receipts did not conclusively prove that the goods were manufactured at their Narela factory, highlighting the lack of direct evidence linking the goods to their unit.

3. Reliance on Evidence: The Commissioner confirmed the duty demand after considering evidence like Panchanamas, statements recorded under Section 14, and documents including computation of duty demand. The appellants contested the reliance on this evidence, claiming that incriminating evidence was not found at their premises and that the Railway Receipts did not establish clandestine removal from their factory.

4. Imposition of Penalties: Mandatory penalties were imposed on the appellants, with penalties on other parties imposed under Rule 26 of the CER, 2002. The penalties were based on the confirmed duty demand and the findings of clandestine removal. The appellants challenged the penalties along with the duty demand in their appeal.

5. Judgment and Appeal: The Tribunal analyzed the arguments presented by both sides, emphasizing the importance of tangible evidence to prove clandestine manufacture and clearance. The Tribunal found that the evidence presented, including Railway Receipts and computer data, did not conclusively link the alleged activities to the appellants' factory. Citing legal precedents, the Tribunal concluded that the demand for excise duty could not be sustained without substantial evidence and set aside the impugned order, allowing the appeal.

In conclusion, the Tribunal's judgment focused on the lack of concrete evidence linking the appellants to the alleged clandestine removal of Gutkha, highlighting the necessity of thorough investigations and tangible proof to support duty demands and penalties in excise cases.