2017 (10) TMI 548 - AT - Central Excise

Clandestine manufacture and removal - electricity consumption - Held that - In several judgments, it has been held that consumption pattern of electricity alone cannot be the basis for allegation of clandestine clearance - Admittedly, there is no discrepancy found in the records maintained by the respondent - charge of clandestine manufacture cannot be established - appeal dismissed - decided against Revenue.

Summary

Issues:
1. Allegation of illicit manufacturing and removal of excisable goods without payment of Central Excise Duty.
2. Confirmation of demand, interest, penalties, and redemption fine by the original authority.
3. Remand of the matter to Commissioner (Appeals) by the Tribunal.
4. Failure of co-noticees to respond to notices.
5. Evidence presented by the department to establish clandestine clearance of goods.
6. Discrepancies in records maintained by the respondent.
7. Reliance on electricity consumption pattern as the basis for the allegation of clandestine clearance.
8. Lack of tangible evidence related to raw material purchase, production, and clearance.
9. Opportunity for cross-examination and response from co-noticees.

Analysis:
1. The case involved the appellants, manufacturers of "Mild Steel Rounds and Flats," facing allegations of engaging in illicit manufacturing and removal of excisable goods clandestinely without paying Central Excise Duty. The investigation led to a show-cause notice demanding a substantial amount, which was confirmed by the original authority along with penalties and redemption fine.
2. The Tribunal initially remanded the matter to the Commissioner (Appeals), who further remanded it to the adjudicating authority. Despite attempts to notify the appellant and co-noticees for personal hearings, only the appellant appeared, leading to a de novo adjudication order confirming the demand and penalties.
3. The department argued for the demand based on evidence gathered from Bill Traders, alleging clandestine activities facilitated by them. The consumption pattern of electricity and discrepancies in production supported their claim, along with voluntary statements and lack of cooperation from the appellant.
4. The lack of response from the co-noticees raised concerns, as their involvement was crucial in establishing the procurement and clearance of unaccounted goods.
5. However, upon review, the Tribunal found the evidence presented insufficient to prove clandestine clearance conclusively. The absence of discrepancies in records, reliance solely on electricity consumption, and lack of tangible evidence regarding raw material purchase weakened the department's case.
6. The Commissioner (Appeals) highlighted the absence of excess finished goods stock, lack of raw material discrepancies, and the outdated nature of the case as factors favoring the appellant. The failure to afford an opportunity for cross-examination further undermined the proceedings.
7. Ultimately, the Tribunal dismissed the department's appeal, citing the lack of grounds to interfere with the impugned order, indicating a lack of substantial evidence to support the allegations of clandestine activities.