2017 (10) TMI 2 - AT - Central Excise

Clandestine removal - consumption of electricity - the lower appellate authority relied upon the various case laws on clandestine removal and concluded with observation that the consumption of electricity appears suspicious - Held that - the findings of the lower appellate authority is contradictory inasmuch as, he is accepting that the Department had variable data on substantial power consumption and thereafter, on the basis of various case laws, it has been held that the consumption of electricity appears suspicious - the charge of clandestine removal is to be established on examination of facts of each case and not merely on the basis of case laws. The matter is remanded to the Commissioner (Appeals) to decide afresh - appeal allowed by way of remand.

Summary

Issues involved:
Appeal against Order-in-Appeal on charge of clandestine removal based on electricity consumption.

Detailed Analysis:

1. Allegation of Clandestine Removal based on Electricity Consumption:
The Revenue filed an appeal against the Order-in-Appeal which set aside the charge of clandestine removal due to suspicious electricity consumption. The Revenue argued that the high electricity consumption during specific time periods indicated clandestine activities. The Respondent countered by stating that no concrete evidence beyond electricity consumption was presented to prove clandestine production or removal. The Respondent emphasized the need for tangible corroborative evidence beyond electricity consumption to establish the charge. The lower appellate authority found the electricity consumption suspicious but lacked additional evidence to support the charge of clandestine removal. The Tribunal noted the contradiction in the lower authority's findings and emphasized the necessity of examining facts in each case rather than solely relying on case laws.

2. Evaluation of Evidence and Legal Precedents:
The Tribunal considered the case law cited by both parties, highlighting the importance of specific evidence beyond electricity consumption to prove clandestine activities. The Tribunal differentiated the present case from previous judgments where allegations were supported by technical opinions and financial statements. In this case, the charge of clandestine removal was solely based on electricity consumption data without additional concrete evidence. The Tribunal emphasized the need for a thorough examination of all relevant facts before establishing the charge of clandestine removal.

3. Remand and Decision:
After thorough consideration, the Tribunal set aside the lower appellate authority's order and remanded the matter for a fresh decision. The Commissioner (Appeals) was directed to reevaluate the case, considering all facts and the grounds of appeal filed by the Revenue. The Tribunal stressed the importance of providing a proper opportunity for hearing before passing a new order. The appeal by the Revenue was allowed by way of remand, indicating the need for a more detailed examination of the case beyond electricity consumption data.

In conclusion, the judgment highlighted the significance of concrete evidence beyond electricity consumption to establish charges of clandestine removal. The Tribunal emphasized the need for a case-specific examination of facts and directed a fresh evaluation by the Commissioner (Appeals) to ensure a comprehensive decision based on all relevant evidence.