2017 (3) TMI 63 - AT - Central Excise

Clandestine Removal - Held that - the investigation was conducted in the case of the appellants as well as in the case of M/s Davinder Sandhu Impex Ltd. 2016 (1) TMI 104 - CESTAT NEW DELHI and the case was booked only on the basis of statement of Sh. Baldev Singh. As on identical investigation and on basis of identical evidence, this Tribunal has already held that on the basis of statement of Sh. Baldev Singh, Managing Director of the appellant and in the absence of evidence in the form of to Manufacture of such huge quantity, the consumption of electricity, additional packing material payment for purchase of additional packing material, payment received for clandestine removal of goods, how the goods were transported has been brought on record by the Adjudicating Authority or the inspecting team, the charge of clandestine removal is not sustainable - in the absence of corroborative evidence to the statement of Sh. Baldev Singh, the charge of clandestine removal is not sustainable against the appellants - appeal allowed - decided in favor of appellants.

Summary

Issues Involved:
1. Demand of duty along with interest and imposition of penalty based on allegations of clandestine removal of goods.
2. Validity of statements made by the Managing Director, Sh. Baldev Singh, and their retraction.
3. Corroborative evidence supporting the allegations of clandestine removal.
4. Comparison with a similar case involving M/s Davinder Sandhu Impex Ltd.

Detailed Analysis:

1. Demand of Duty and Imposition of Penalty:
The appellants were subjected to a demand of duty along with interest and penalties based on allegations of clandestine removal of goods. The Central Excise officers conducted a search on 20.05.2004 and found no discrepancies in the physical stock and records. However, the department alleged clandestine removal based on a formula derived from the statement of Sh. Baldev Singh, who initially stated that the wastages were about 10-15% but later clarified it to be around 30%.

2. Validity of Statements by Sh. Baldev Singh:
The case heavily relied on the statements of Sh. Baldev Singh, the Managing Director, who initially admitted to the clandestine removal of goods but later retracted his statements. His retraction was on the grounds that the statements were made under duress. The Tribunal noted that the statements were retracted almost immediately and were not corroborated by any other substantial evidence.

3. Corroborative Evidence:
The Tribunal emphasized the necessity of corroborative evidence to substantiate the allegations of clandestine removal. In this case, no additional evidence such as records of electricity consumption, additional packing material, payment for purchase of additional packing material, or details of transportation of the goods was provided. The Tribunal referred to several precedents where the absence of concrete evidence led to the dismissal of similar charges.

4. Comparison with M/s Davinder Sandhu Impex Ltd.:
The Tribunal compared this case with a similar case involving M/s Davinder Sandhu Impex Ltd., where the duty demand was based on identical facts and statements. In that case, the Tribunal had ruled in favor of the assessee, stating that the charge of clandestine removal was not sustainable in the absence of corroborative evidence. The Tribunal applied the same reasoning to the present case, concluding that the allegations could not be upheld solely based on the retracted statements of Sh. Baldev Singh.

Conclusion:
The Tribunal set aside the impugned order, allowing the appeals with consequential relief. The judgment underscored that in the absence of corroborative evidence to support the retracted statements of Sh. Baldev Singh, the charge of clandestine removal was not sustainable. This decision aligns with the Tribunal's previous rulings in similar cases, reinforcing the principle that mere assumptions and uncorroborated statements cannot form the basis for such serious allegations.

Final Judgment:
The impugned order was set aside, and the appeals were allowed with consequential relief, if any. The Tribunal's decision was dictated and pronounced in the open court.