2017 (9) TMI 991 - HC - Central Excise

Clandestine removal - recovery of Central Excise duty with interest and penalties - Held that - We do not find that the Tribunal understood the Commissioner s order as being passed solely on the Chartered Engineer s certificate. According to the Tribunal, this was one of the important grounds which weighed with the Commissioner in dropping the proceedings. The perusal of the order of the Commissioner would establish that the Tribunal s observations are correct - The Commissioner did refer to other evidence on record, nevertheless, his findings were based heavily on the Chartered Engineer s certificate indicating the production capacity of the unit and the fact that the department had alleged total clearance worth nearly three times the maximum capacity. The Tribunal granted opportunity to the department to verify and if found inaccurate, controvert the Chartered Engineer s certificate. The onus is thus on the department to produce such material if so desired - appeal dismissed - decided against appellant.

Summary

Issues:
1. Remanding the case for reappreciation of Chartered Engineer's Certificate.
2. Ignoring evidence of perversity in the Commissioner's order.
3. Remanding the case after 11 years for certificate examination.
4. Focusing only on the Chartered Engineer's certificate.
5. Directing independent assessment of the certificate after a significant lapse.

Issue 1: Remanding the case for reappreciation of Chartered Engineer's Certificate:
The appellant challenged the remand by CESTAT to the Original adjudicating authority for reappreciation of the Chartered Engineer's Certificate. The Tribunal observed that the Commissioner's decision heavily relied on this certificate, indicating discrepancies in the production capacity. The Tribunal directed the department to verify the certificate independently through experts, considering the age of the case. The appellant argued against the remand, citing difficulty in producing additional evidence after a long gap.

Issue 2: Ignoring evidence of perversity in the Commissioner's order:
The appellant contested the remand by CESTAT, claiming that the department failed to provide evidence of perversity in the Commissioner's order. The Tribunal, however, focused on the discrepancies highlighted by the Chartered Engineer's Certificate, leading to the decision for reexamination.

Issue 3: Remanding the case after 11 years for certificate examination:
The appellant raised concerns about the remand after 11 years for examining the Chartered Engineer's Certificate. The Tribunal emphasized the importance of verifying the certificate to determine the actual production capacity, despite the time lapse.

Issue 4: Focusing only on the Chartered Engineer's certificate:
The appellant argued that the Tribunal solely relied on the Chartered Engineer's Certificate, overlooking other evidence presented in the Commissioner's order. The Tribunal acknowledged the presence of other evidence but highlighted the significance of the certificate in the decision-making process.

Issue 5: Directing independent assessment of the certificate after a significant lapse:
The Tribunal directed the department to independently assess the Chartered Engineer's Certificate through experts, along with verifying purchase documents and manufacturer information. The appellant contested this direction, stating that the burden of proof should not fall on them to substantiate the certificate's contents after a considerable period. The Tribunal clarified that the onus lies on the department to provide contradictory evidence if needed.

In conclusion, the High Court dismissed the tax appeal, upholding the Tribunal's decision to remand the case for further examination of the Chartered Engineer's Certificate and allowing the department to verify its accuracy independently.