2017 (6) TMI 934 - AT - Central Excise

Clandestine removal - hand made biris - case of the appellant is that no enquiry was conducted and no statement was recorded from the appellant - natural justice - Held that - the Central Excise Officers visited the appellant s factory on 09.06.1999 and procured a letter dated 09.06.1999 of the appellant s father written in Bengali stating that he was paying duty only on 20, 000 pieces of hand made biris - the said letter cannot be treated as statement under Section 14 of the Act 1944. The Hon ble Calcutta High Court in the case of Sanwar Agarwal Vs. Commr. of Customs (Port) 2016 (4) TMI 621 - CALCUTTA HIGH COURT observed that where the statute empowers an authority to do a certain thing in a certain way that thing must be done only in that way or not at all. Therefore the statement under Section 14 of the Act would require to be recorded as per procedure specified in the said Section and the letter of the father of the appellant has no statutory force. Appeal allowed - decided in favor of appellant.

Summary

Issues:
- Duty demand on hand-made biris allegedly removed clandestinely based on a letter
- Validity of the letter as a statement under Section 14 of the Central Excise Act, 1944
- Lack of investigation before issuing the Show-cause notice
- Requirement of positive/tangible evidence to establish charge of clandestine removal

Analysis:

Issue 1: Duty demand on hand-made biris allegedly removed clandestinely based on a letter
The appeal was filed against the Order-in-Appeal confirming the duty demand on 2,45,60,000 hand-made biris allegedly removed clandestinely. The Adjudicating Authority had imposed a penalty equal to the amount of duty. The Commissioner (Appeals) rejected the appeal, leading to the present appeal.

Issue 2: Validity of the letter as a statement under Section 14 of the Central Excise Act, 1944
The appellant's advocate argued that no enquiry was conducted, and no statement was recorded from the appellant. The case was primarily based on a letter dated 09.06.1999 from the appellant's father, which the advocate contended should not be treated as a statement under Section 14 of the Act. Citing a decision by the Hon'ble Calcutta High Court, the advocate emphasized the procedural requirements for recording statements under the Act.

Issue 3: Lack of investigation before issuing the Show-cause notice
The appellant's counsel highlighted the lack of investigation before the Show-cause notice was issued, pointing out that the notice was sent about two weeks after the officers visited the factory on 09.06.1999. The advocate referenced various decisions emphasizing the necessity of conducting thorough investigations and establishing charges based on positive/tangible evidence rather than assumptions.

Issue 4: Requirement of positive/tangible evidence to establish charge of clandestine removal
Upon reviewing the records, the Judicial Member found that the case was primarily built on a letter from the appellant's father, which was not considered a valid statement under Section 14 of the Act. The Member also noted the absence of evidence linking the father to the appellant's business and emphasized the need for concrete evidence to prove charges of clandestine removal. The Tribunal's consistent stance on requiring substantial evidence to establish such charges was reiterated.

In conclusion, the Judicial Member set aside the impugned order, allowing the appeal filed by the appellant based on the lack of proper evidence and procedural shortcomings in the case.