2017 (9) TMI 1427 - AT - Central Excise

Clandestine removal - the Revenue s case is primarily and mainly based upon the entries made in the Private Gate Passes and the Outgoing Material Register - Held that - Admittedly, such entries contained all the relevant particulars concerning the removal of the goods. The Private Gate Passes prepared by the appellant indicate all the particulars required to be indicated in the Central Excise Invoices/Gate Passes. The Managing Director of the appellant-Company, in his initial statement has admitted that such gate passes stand used by them for removal of their final product without reflecting the same in their statutory records - even though the first statement was subsequently retracted by Shri Ashok Saraf but such retraction is of no consequence as Shri Ashok Saraf himself in his subsequent statement admitted the initial facts disclosed by him in his first statement and also submitted that retraction may be considered to be of no consequence - the duty demand stands raised on the basis of the unaccounted and unexplained excess raw material is not factually correct. The reference to the unaccounted raw material is only with an intention to corroborate the allegation and charge of clandestine manufacture and removal of the final product. Even though, the charges of clandestine removal are required to be established by the Revenue by production of, sufficient tangible evidences but the acceptance of such evidences, depends upon the facts of each and every case. In my view, the appellant having not challenged and contested the entries made in the private records which stand corroborated by the recipient of the goods along with fact of findings of unaccounted excess raw materials inspire confidence in the Revenue s case - duty demand upheld. Penalties - Held that - the same are on the lower side and require no interference by the Tribunal. Similarly, penalty imposed upon Shri Ashok Saraf is proper and appropriate inasmuch as, the entire evidences on record lead to the factum of involvement of the Managing Director in such clandestine activities of the manufacturing Unit. Appeal dismissed - decided against appellant.

Summary

Issues:
- Confirmation of demand of duty against the company
- Imposition of penalties under various rules
- Allegations of clandestine activities and unaccounted raw materials

Confirmation of demand of duty against the company:
The Commissioner confirmed a demand of duty against the company for not reflecting certain entries in statutory records, leading to suspicion of clandestine activities. The company's factory was visited, records were scrutinized, and discrepancies were found between private and statutory records. Statements of individuals, including the Managing Director, were recorded, admitting to clearing products without duty payment. Despite retractions, subsequent statements reaffirmed the initial admissions. The company argued that explanations for excess raw materials were provided, but the Revenue focused on private records and gate passes. The Tribunal upheld the demand, citing the company's failure to dispute the entries or provide explanations.

Imposition of penalties under various rules:
Penalties were imposed on the company and its Managing Director for clandestine activities. The company's defense based on excess raw materials was rejected, emphasizing the significance of private records and gate passes. The Tribunal found the penalties appropriate, considering the involvement of the Managing Director in the activities. The penalties were upheld without interference.

Allegations of clandestine activities and unaccounted raw materials:
The Revenue's case centered on private records and gate passes indicating clandestine removal of goods. The Managing Director's admissions, along with statements from employees, supported the allegations. The company's explanations for excess raw materials were deemed irrelevant as they did not address the discrepancies in the records. The presence of unaccounted raw materials was used to corroborate the charges. The Tribunal found the evidence sufficient to establish clandestine activities, especially considering the connections to another company owned by the appellant. The confirmation of duty demand was upheld based on the evidence presented.