2017 (11) TMI 15 - AT - Central Excise

Clandestine removal - parallel invoices, gate passes, challan etc - more than 80% of the clearances made by respondent are to Govt. agencies such as Markfed and MP Agro - Held that - the impugned order is not sustainable inasmuch as it has not considered all the evidences in proper contexts. The adjudicating authority has also completely ignored the irregularity in non payment of duty on goods cleared on consignment basis to Govt. Marketing Agencies - the matter is required to be sent back to the adjudicating authority for deciding the matter afresh after proper appreciation of evidence - appeal allowed by way of remand.

Summary

Issues:
1. Alleged evasion of Central Excise duty by the respondent.
2. Adjudication of the show cause notice and subsequent dropping of proceedings.
3. Appeal filed by the Revenue against the order.

Issue 1: Alleged evasion of Central Excise duty by the respondent

The case involved M/s. GSCPL, engaged in manufacturing pesticides, fungicides, herbicides, and micronutrients/fertilizers. The Directorate General of Central Excise Intelligence (DGCEI) conducted a search on their premises based on collected intelligence, revealing evasion of Central Excise duty through suppression of production and clandestine clearance of goods without payment. Confessional statements under Section 14 of the Central Excise Act, 1944, were made by key individuals of M/s. GSCPL, admitting to the evasion. A show cause notice was issued for the recovery of unpaid duty, interest, and penalties.

Issue 2: Adjudication of the show cause notice and subsequent dropping of proceedings

The Principal Commissioner dropped the proceedings initiated against M/s. GSCPL, finding the DGCEI's case unsustainable on merits. The Revenue, aggrieved by this decision, filed an appeal challenging the order. The Revenue argued that evidence, including admissions by M/s. GSCPL's MD and accountant, supported the evasion claims. They highlighted discrepancies in invoicing and payment of duty, alleging clandestine clearance and non-payment of excise duty on goods.

Issue 3: Appeal filed by the Revenue against the order

During the appeal hearing, both sides presented their arguments. The Revenue contended that the impugned order ignored crucial evidence and the irregularities in duty payment, making it unsustainable. The respondent's counsel defended the order, emphasizing that most clearances were to government agencies, and duty was paid upon sale to farmers. The Tribunal noted the irregularities in the duty payment procedure, emphasizing the requirement to pay excise duty upon clearance from the factory, even on consignment sales. The Tribunal found the impugned order lacking proper consideration of evidence and irregularities, remanding the matter for fresh adjudication with a directive for a fair hearing and consideration of additional evidence.

In conclusion, the Tribunal set aside the impugned order, allowing the Revenue's appeal by way of remand for a fresh decision after proper evaluation of all evidence and irregularities in duty payment.