2017 (8) TMI 588 - AT - Central Excise

Clandestine removal - manufacture of Pan Masals/Gutkha - use of brand name - the entire SCN is based on bilties/GR s claimed to have been recovered from M/s. Vinod Forwarding Agency, Kanpur - cross examination - Held that - During the cross examination as stated in the foregoing paragraphs it has been established that the brand name of the Gutkha booked by M/s. Vinod Forwarding Agency has not been stated on the said GR s/bilties and it was only presumed by Revenue that wherever no mention of Rajshree is established said Gr s/bilties should be treated as if the said goods were booked by the appellants and that the said goods were having brand name of Patel and Kisan. Through the cross examination it has been very clearly revealed that the statements on the basis of which said show cause notice was issued were recorded under duress and all the submissions made in the statements were retracted by the witnesses and during the cross examination they have also stated that the statements were recorded under pressure by the officers and one of the witness has also stated that he was tortured for extracting statement from him. There is no investigation conducted about procurement of raw material of allegedly clandestinely cleared goods. Further unless criteria is provided through legal provisions to charge duty on the basis of capacity of production or consumption of electricity the same cannot the basis for allegation of manufacture of goods and their clandestine removal. Appeal allowed - decided in favor of appellant.

Issues Involved:
1. Legitimacy of documents and evidence used by the department.
2. Validity of statements recorded under duress.
3. Appropriateness of duty demand based on third-party documents.
4. Justification for penalties imposed under Rule 26 of Central Excise Rules, 2002.
5. Examination of cross-examinations and retractions.

Issue-wise Detailed Analysis:

1. Legitimacy of Documents and Evidence:
The department's case was primarily built on bilties and GRs recovered from M/s Vinod Forwarding Agency, Kanpur, during searches at M/s K.P. Pan Flavours Pvt. Ltd., M/s Ashwani Tobacco Company, and M/s Kurele Fragrances Pvt. Ltd. The appellants argued that the demand was based on third-party documents not directly linked to their firms. The Tribunal found that the documents did not explicitly mention the brand names "Patel" and "Kisan" and were presumed by the Revenue to belong to the appellants. The Tribunal noted the possibility of the same GRs being used repeatedly for framing charges against various manufacturers, which undermined the credibility of the evidence.

2. Validity of Statements Recorded Under Duress:
The appellants contended that statements from their representatives were obtained under pressure, duress, and torture. During cross-examinations, individuals like Shri R.P. Dewakar and Shri Jung Bahadur Singh Chandel retracted their statements, asserting they were made under coercion. The Tribunal found that the statements were recorded under duress, and the retractions were credible. The Original Authority's failure to address these retractions and the circumstances under which the statements were made further weakened the department's case.

3. Appropriateness of Duty Demand Based on Third-Party Documents:
The Tribunal observed that the duty demands were based on GRs and bilties recovered from third parties and not directly from the appellants' premises. The department presumed that Gutkha transported without specific brand names was manufactured by the appellants, which was not substantiated by concrete evidence. The Tribunal emphasized that unless the documents explicitly linked the goods to the appellants, the demands were unsustainable.

4. Justification for Penalties Imposed Under Rule 26 of Central Excise Rules, 2002:
Penalties were imposed on individuals under Rule 26 for their alleged involvement in the clandestine removal of goods. However, since the goods were not conclusively proven to be manufactured or cleared by the appellants, and the evidence was based on retracted statements and presumptive documents, the penalties lacked a solid foundation. The Tribunal set aside these penalties, finding them unjustified.

5. Examination of Cross-Examinations and Retractions:
The Tribunal gave significant weight to the cross-examinations and retractions, which revealed that the statements were obtained under duress. The Original Authority's dismissal of these retractions without substantial reasoning was a critical flaw. The Tribunal highlighted that the burden of proof was on the department to establish that statements were made voluntarily and were reliable, which they failed to do.

Conclusion:
The Tribunal found that the show cause notice and the subsequent Order-in-Original were based on insufficient and unreliable evidence. The reliance on third-party documents, retracted statements, and presumptions without direct linkage to the appellants' activities rendered the demands and penalties unsustainable. Consequently, the Tribunal set aside the impugned Order-in-Original and allowed the appeals, granting the appellants consequential relief.

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