2008 (9) TMI 325 - AT - Central Excise

100% EOU diversion of import goods to DTA where were procured duty free there were substantial evidence to hold that the duty free POY received by the appellant was not actually put to use for manufacture of goods to be exported but was diverted in the local market low consumption of electricity no evidence of procurement of diesel oil for generation set non existence of material demand of duty and penalties upheld.

Summary

Issues:
Confirmation of duty, imposition of penalty, diversion of duty-free procured materials, involvement of partners and related entities, evidentiary value of statements and records, imposition of penalties on involved parties.

Confirmation of Duty and Imposition of Penalty:
The appeals arose from an order confirming duty against a company for domestic clearance of duty-free procured materials instead of using them for export. The duty, penalty, and interest were confirmed based on findings during a visit to the company's factory, statements of individuals involved, and discrepancies in stock and operations. The Tribunal upheld the duty confirmation, interest imposition, and penalty on the company but set aside the individual penalties due to lack of sufficient evidence.

Diversion of Duty-Free Procured Materials:
Investigations revealed that the company procured duty-free materials but diverted them to the local market instead of using them for manufacturing goods for export. Various statements, including those of employees and partners, corroborated the diversion. Records seized from related entities further supported the diversion. The Tribunal found substantial evidence to conclude that the duty-free materials were indeed diverted, leading to the confirmation of duty and penalties.

Involvement of Partners and Related Entities:
Partners of the company and another related entity were also implicated in the diversion of duty-free materials. While penalties were initially imposed on them, the Tribunal reduced or set aside these penalties based on the evidence presented. The involvement of partners and related entities was crucial in establishing the diversion of materials and determining the appropriate penalties.

Evidentiary Value of Statements and Records:
The Tribunal considered various statements, including those of employees, partners, transporters, and seized records, as crucial evidence in establishing the diversion of duty-free materials. The meticulous maintenance of records by one of the related entities played a significant role in corroborating the statements and proving the diversion. The Tribunal emphasized the importance of these statements and records in determining the case outcome.

Imposition of Penalties on Involved Parties:
Penalties were imposed on the company and a related entity for their involvement in the diversion of duty-free materials. While the penalties on the company were upheld, the penalties on individual partners were set aside due to insufficient evidence. The Tribunal reduced the penalty on the related entity based on the circumstances of the case. The decision on penalties was made considering the level of involvement and evidence against each party.

This detailed analysis of the judgment highlights the issues involved, the evidence presented, and the Tribunal's decision regarding the confirmation of duty, imposition of penalties, and the role of partners and related entities in the diversion of duty-free procured materials.