2017 (1) TMI 493 - AT - Central Excise

Clandestine removal - MS Ingots - demand of duty interest and penalty - the case of the Revenue is based on the note book recovered from the possession of Shri Sarat Kumar Das (Supervisor of Shri Purna Ramdas Labour Contractor) and the various statements. Held that - No such evidences to the above effect has been brought by the Revenue on record therefore the demand is not sustainable against the appellant alleging clandestine removal. Moreover we also take note of the fact that pilot experiments were conducted to ascertain the electricity consumption for manufacturing of One MT of MS ingot twice and same were found in order therefore Revenue has failed to establish how the goods were manufactured in the factory of the appellants - As there is no positive evidence has been produced by the Revenue to allege clandestine removal goods therefore the impugned order is not sustainable. Appeal allowed - decided in favor of appellant.

Summary

Issues:
- Allegation of clandestine clearance of finished goods
- Reliability of evidence based on statements and note book
- Retraction of statement by Shri Sarat Kumar Das
- Examination of contents of note book
- Adverse findings without examining makers of statements
- Lack of positive evidence for clandestine removal of goods

Analysis:
1. The case involves an appeal against an order confirming duty demand on the allegation of clandestine clearance of finished goods, along with interest and penalty on all appellants. The facts include a search revealing finished goods and a note book containing loading and unloading details, leading to a Show Cause Notice and subsequent confirmation of duty demand, interest, and penalty.

2. The appellant's advocate argued that the case heavily relies on Shri Sarat Kumar Das's statement and the note book, emphasizing Das's retraction through a sworn affidavit. The advocate pointed out discrepancies in the note book entries, lack of confrontation with relevant parties, and absence of evidence from customers, production managers, or directors. The advocate also questioned the adequacy of evidence regarding alleged clandestine removal of goods.

3. The appellate tribunal noted the retraction of Das's statement through an affidavit and emphasized the need to consider such retractions, citing legal precedents. The tribunal found shortcomings in the investigation, including the lack of efforts to verify note book contents with other entities mentioned and the absence of confrontations with relevant individuals.

4. The tribunal highlighted the necessity of tangible, direct, and incontrovertible evidence to prove clandestine removal of goods, as established in previous judgments. It noted the absence of such evidence in the case at hand, including discrepancies in electricity consumption and lack of proof regarding manufacturing processes.

5. Ultimately, the tribunal set aside the charge of clandestine removal of goods due to insufficient evidence, except for confirming the duty demand related to the shortage of finished goods during the investigation. The decision was based on the lack of positive evidence supporting the allegation of clandestine removal, leading to the confirmation of duty demand with interest and the imposition of a penalty on the appellant.

6. The judgment was pronounced on January 2, 2017, highlighting the tribunal's detailed analysis of the evidence, retraction of statements, and the legal standards required to establish allegations of clandestine activities in excise matters.