2017 (11) TMI 815 - AT - Central Excise

Clandestine removal - Cotton Yarn - it appeared that the appellants were engaged in the purchase of cotton which were not properly accounted and the same were manufactured as cotton yarn and removed clandestinely in the guise of hank yarn as against cheese yarn without payment of appropriate duty - Held that - The fact that M/s. SPRT could have purchased the alleged cotton yarn from any other parties cannot be ruled out. The income expenditure statement maintained by the broker Shri ThiruThirumoorthy is his personal accounts of income expenditure and this cannot be an authentic document so as to form the basis of demand of duty alleging clandestine removal against the appellant. Thus, the major part of the remaining evidence in this case is the statement obtained from various persons. In cross-examination, Shri Thirumoorthy has stated that he purchased hank yarn as well as cheese yarn from appellants. The ld. Counsel has strongly argued that the statements cannot be taken as evidence unless they are tested by way of examination of the persons as provided under section 9D of Central Excise Act - In the absence of examination of witnesses and their cross-examination, the statements are inadmissible in evidence and the demand of duty based on such statements alone, in our view, is unsustainable. The allegation of clandestine clearance of goods being a serious one, though not proved to mathematical precision has to be established at least to the extent of balance of probabilities. In the present case, the department has raised the demand on the basis of documents which are mainly third party documents and only on statements of various persons. Therefore, in our view, on the totality of facts and evidence presented, we find that the department has failed to establish the allegation of clandestine clearance as alleged by them in the show cause notice. In such circumstance, the demand raised is unsustainable and requires to be set aside. Appeal allowed - decided in favor of appellant.

Issues Involved:
1. Alleged clandestine removal of cotton yarn without accounting and without payment of duty.
2. Alleged clearance of cheese yarn in the guise of hank yarn.
3. Alleged unaccounted purchase of raw materials.
4. Validity of evidence and statements relied upon by the department.
5. Demand of duty and imposition of penalties.

Detailed Analysis:

1. Alleged Clandestine Removal of Cotton Yarn:
The appellants were accused of clandestine removal of cotton yarn without proper accounting and payment of duty. The department's investigation, which included visits to the factory and customer premises, revealed documents and statements suggesting that the appellants cleared cheese yarn without accounting for it and without paying the appropriate duty.

2. Alleged Clearance of Cheese Yarn in the Guise of Hank Yarn:
The department alleged that the appellants cleared cheese yarn to various traders under the guise of hank yarn, which is exempt from duty. This was supported by statements from the proprietors of the trading firms, who confirmed receiving cheese yarn despite invoices indicating hank yarn. The appellants countered this by providing purchase invoices, lists of job workers, and AR-3A forms to prove the manufacture and clearance of hank yarn.

3. Alleged Unaccounted Purchase of Raw Materials:
The appellants were also accused of purchasing cotton yarn without proper accounting from specific suppliers. The department's evidence included documents recovered from the broker and statements from suppliers, indicating unaccounted transactions.

4. Validity of Evidence and Statements:
The appellants challenged the evidence presented by the department, arguing that it was based on third-party records and statements that were not corroborated by independent evidence. They emphasized the need for cross-examination of witnesses as per Section 9D of the Central Excise Act. The department relied on slips, diaries, and income-expenditure statements recovered during the investigation, but these were not directly linked to the appellants' factory records.

5. Demand of Duty and Imposition of Penalties:
The original authority confirmed the duty demand along with interest and imposed penalties on the appellants and individuals involved. The appellants argued that the department's findings were based on incorrect assumptions and uncorroborated evidence. They provided invoices for reeling machines and details of job workers to support their claim of manufacturing hank yarn.

Judgment Analysis:
The tribunal found that the department's main evidence, including slips and diaries recovered from third parties, lacked direct correlation with the appellants' factory records. The statements from various persons were deemed inadmissible as they were not tested by cross-examination. The tribunal noted that the appellants had produced sufficient evidence, such as invoices and AR-3A forms, to establish the manufacture and clearance of hank yarn.

The tribunal concluded that the department failed to establish the allegations of clandestine clearance and evasion of duty. The demand raised by the department was found to be unsustainable, and the impugned order was set aside. The appeals were allowed with consequential relief as per law.

Conclusion:
The tribunal's judgment emphasized the importance of corroborating evidence and the need for cross-examination of witnesses in cases involving serious allegations like clandestine removal and duty evasion. The appellants successfully demonstrated that the department's findings were based on uncorroborated third-party documents and statements, leading to the dismissal of the demand and penalties imposed.

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