2017 (3) TMI 926 - AT - Central Excise

Clandestine removal - natural justice - the authorities failed to offer all the witnesses for cross examination by the appellants - Held that - ld. Commissioner could not rely on the statements of these witnesses without providing them for cross-examination - reliance was placed in the decision of the case of G. Tech Industries vs. UOI 2016 (6) TMI 957 - PUNJAB & HARYANA HIGH COURT , where it was pointed out that Section 138 of the Indian Evidence Act, 1872, clearly sets out the sequence of evidence, in which evidence-in-chief has to precede cross-examination, and cross-examination has to precede re-examination. The computer printouts have been taken out as RUD-1 and 2 are in the form of prints taken out from the pen-drive as well as from the hard-disk recovered, the conditions under Section 36B(2) have not been satisfied for the admissibility of evidence in the form of computer printouts, in RUD-1 and 2. It is true that the evidence which is required to be produced in quasi judicial proceedings should be such that the charges get established on the basis of preponderance of probability. The standard of evidences need not be as high as in criminal proceedings, where the charges are required to be established beyond reasonable doubts - in the present case the allegation of clandestine manufacture and clearance has not been substantiated by any tangible evidences, The Revenue has failed to produce any corroborative evidence in the form of purchase of raw materials, clearance of finished products or even the capacity to manufacture such a huge quantity of finished products alleged to have been cleared. The evidence, at best, raises suspicion in the minds but is not sufficient to prove the charges of clandestine removal. The evidences produced by the Revenue for sustaining the duty demand has not been corroborated by detailed investigation - The allegation of clandestine manufacture and clearance cannot be sustained on the basis of such flimsy evidences - appeal allowed - decided in favor of appellant.

Issues Involved:
1. Admissibility of Computer Printouts as Evidence
2. Production Capacity vs. Alleged Clandestine Removal
3. Infraction of Principles of Natural Justice
4. Lack of Corroborative Evidence for Clandestine Removal

Issue-wise Detailed Analysis:

1. Admissibility of Computer Printouts as Evidence:
The appellants challenged the admissibility of RUD-1 and RUD-2, which are computer printouts, under Section 36B of the Central Excise Act, 1944. The conditions under Section 36B(2) for admissibility were not satisfied, as the printouts were taken from a pen drive and hard disk recovered from a third party's residence (Smt. Janki Sharma). The printouts contained entries up to 28.02.2006, although they were seized on 18.11.2005, raising doubts about their authenticity. Furthermore, Smt. Janki Sharma retracted her statement and claimed there was no printer at her house, which undermines the credibility of the printouts as evidence.

2. Production Capacity vs. Alleged Clandestine Removal:
The appellants argued that the duty demand based on alleged clandestine removal was impracticable given their production capacity. The Commissioner estimated a production capacity of 600MT from March 2005 to November 2005, while the demand was based on an alleged production of 3132MT. For the period 17.09.2005 to 12.11.2005, the production capacity was 135MT, but the demand was based on 350MT. These figures were deemed inflated and unreasonable, showing a significant discrepancy between the alleged clandestine removal and actual production capacity.

3. Infraction of Principles of Natural Justice:
The appellants contended that their right to cross-examine key witnesses was denied, violating principles of natural justice. Although cross-examination of Smt. Janki Sharma was permitted, other crucial witnesses like Shri Hrishikesh Dubey, Shri Kashiram Puri, Shri R.S. Aggarwal, and Shri Manish Sethi were not made available for cross-examination despite requests. The reliance on their statements without cross-examination was improper and against the provisions of Section 9D of the Central Excise Act, 1944, as supported by the judgment in G. Tech Industries vs. UOI.

4. Lack of Corroborative Evidence for Clandestine Removal:
The entire allegation of clandestine removal was based on statements and computer printouts from a third party. The status of Smt. Janki Sharma as an employee was not established, and her retracted statement further weakened the case. The Revenue failed to produce corroborative evidence such as procurement of raw materials, transportation records, or statements from buyers. No discrepancy was found in the stock of raw materials and finished goods during the search, and the alleged production quantities were overestimated. The evidence presented was insufficient to substantiate the serious charge of clandestine removal, as it raised suspicion but did not provide tangible proof.

Conclusion:
The Tribunal concluded that the evidence provided by the Revenue was not corroborated by detailed investigation and was insufficient to sustain the duty demand. The allegations of clandestine manufacture and clearance were based on flimsy evidence, leading to the setting aside of the impugned order and allowing the appeal. The judgment emphasized that serious charges like clandestine removal must be proven with concrete and reliable evidence, which was lacking in this case.

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