2017 (9) TMI 1055 - AT - Central Excise

Clandestine removal - the case has been booked against the appellants alleging clandestine removal of the goods on the basis of investigation conducted on 11.10.2007 in the factory premises as well as residential premises and at the places of various buyers etc. - Held that - There is no evidence on record how the goods were removed from the factory of the appellant - It is also a fact on record that the appellant is also trading certain electronic items like iron and toaster. No effort has been made to find out the value and clearance of iron and toaster. It is evident on record that the appellant are engaged in the activity of trading iron and geyser and other electronic appliances. It is a fact on record that the appellant is manufacturing only ceiling fans, exhaust fans and geyser. Therefore, without establishing the fact that the appellant has manufactured the goods, the duty cannot be demanded - in the Show Cause Notice one of the allegation is that the appellant have been procured raw material in clandestine manner to manufacture of the goods. That is based on the documents recovered from the residential premises of the appellants. Those documents does not pertain to the period in dispute and no other evidence is available on record for procurement of the said raw material clandestinely. Therefore, in the absence of any corroborative evidence, the documents recovered from the residential premises cannot be the basis to allege manufacture and clandestinely removal of goods. Further, the documents recovered from the residential premises does not form part of the relied upon documents, therefore the said documents cannot be relied upon - the charge of clandestine removal of goods is not sustainable - penaltyv also set aside. Confiscation of the Indian currency - Held that - no documents has been placed on record that the said Indian currency is the sale proceeds of clandestine manufacture and removal of goods, therefore, the Indian currency recovered from the premises of Shri Ish Kumar is not liable for confiscation. Confiscation of finished goods which were not recorded in their stock - Held that - it is an admitted fact on record that the goods worth ₹ 10,76,721/- were lying in the factory in finished condition and have not been recorded in statutory records. Therefore, the said goods are liable for confiscation - however, the redemption fine imposed on the appellant is on higher side, therefore, the same is reduced to Rs. One lakh - the penalty is also confirmed on the charge of confiscation EEPL of ₹ 1,72,275/- is on higher side. Therefore, the same is reduced to ₹ 50,000/-. Appeal allowed - decided partly in favor of appellant.

Summary

Issues:
Allegations of clandestine removal of goods, duty demand, penalties, confiscation of goods and cash, imposition of fines, and penalties.

Analysis:
The case involved allegations of clandestine removal of goods against the appellants, leading to duty demands, penalties, and confiscation of goods and cash. The main appellant, engaged in manufacturing electronic appliances, was accused of clandestinely removing goods and not recording them in statutory records. Evidence included seized goods, currency found at the residence, and statements from traders. The appellant argued against the allegations, stating lack of evidence and relevance of recovered documents and slips. The appellant also challenged the penalties imposed.

The appellant's counsel argued that the seized goods were not at a marketable stage, and the currency was for emergency needs, not proceeds from clandestine activities. They contested the penalties imposed on the directors, citing lack of evidence. The counsel also questioned the reliance on statements and documents recovered during the investigation.

The appellate tribunal considered the submissions from both sides. It found discrepancies in the evidence presented by the revenue, including kucha slips lacking specific details and statements from traders that were retracted. The tribunal noted the lack of evidence linking the seized goods to clandestine activities and the absence of proof of manufacturing and removal processes. It concluded that the charge of clandestine removal of goods was not sustainable, leading to the dismissal of demands and penalties related to this allegation.

Regarding the confiscation of Indian currency and unrecorded finished goods, the tribunal ruled in favor of the appellants. It directed the release of the currency and reduced the fines and penalties imposed on the appellants for the unrecorded goods. The tribunal found the redemption fine and penalties excessive and reduced them accordingly.

In the final order, the tribunal dismissed the demands related to clandestine removal of goods, released the seized currency, and reduced the fines and penalties imposed on the appellants. The appeals were disposed of accordingly.