2017 (11) TMI 1387 - AT - Central Excise

Clandestine removal - The entire allegation of clandestine removal is based on the statements of the transporters as well as the details culled out from the ledgers of the transporters - Held that - These documents are evidently third party documents. The revenue has not produced any evidence from the assessee to support the charge of clandestine clearance. It is settled law that documents recovered from the third party cannot be used against the manufacturer to prove clandestine removal, unless they are supported by corroborative evidence - From the records of the factory no evidence has been brought on record either regarding manufacture of the finished goods or clearance of the same. The third party evidence produced by revenue for sustaining duty demand has not been corroborated by detailed investigation. The allegation of clandestine clearance cannot be sustained only on the basis of third party evidence - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Demand of Central Excise Duty based on third-party documents
- Lack of investigation on buyers or suppliers
- Absence of corroborative evidence against the appellant
- Denial of cross-examination of transporters
- Reliance on case laws for supporting arguments

Analysis:
1. Demand of Central Excise Duty based on third-party documents:
The appeals were filed against the Order-in-Original by the Commissioner, Raipur, confirming a duty demand of ?85,51,258 from the appellant assessee. The demand was made based on documents recovered from transporters indicating transportation of goods from the appellant. The Adjudicating Authority confirmed the demand, citing statements of transporters and the Authorized Signatory. However, the Tribunal observed that third-party documents alone cannot be used to prove clandestine removal without corroborative evidence from the assessee.

2. Lack of investigation on buyers or suppliers:
The appellant argued that the department failed to investigate the buyers or suppliers of the goods. No evidence of payments received for alleged clandestine clearances was presented. The Tribunal noted the absence of any corroborative evidence against the appellant to substantiate the demand. The lack of evidence regarding procurement of raw materials or questioning of customers raised doubts about the allegations.

3. Absence of corroborative evidence against the appellant:
The Tribunal emphasized that in quasi-judicial proceedings, charges should be established based on a preponderance of probability. The standard of evidence need not be beyond reasonable doubt but should be sufficient to support the allegations. In this case, the Tribunal found the evidence from transporters insufficient to prove clandestine clearances, highlighting the need for tangible evidence to substantiate such serious charges.

4. Denial of cross-examination of transporters:
The appellant requested cross-examination of the transporters, which was denied by the Adjudicating Authority. The denial of cross-examination raised concerns about the fairness of the proceedings and the appellant's right to challenge the evidence presented against them.

5. Reliance on case laws for supporting arguments:
The appellant relied on various case laws, including Goyal Tobacco Co. Pvt. Ltd. and Continental Cement Company, to support their arguments. These cases emphasized the importance of corroborative evidence in proving allegations of clandestine removal and highlighted the necessity of detailed investigations to substantiate such charges.

In conclusion, the Tribunal set aside the impugned order and allowed the appeals, emphasizing that the evidence presented by the revenue lacked the necessary corroboration to sustain the duty demand based solely on third-party documents. The judgment underscored the importance of conducting thorough investigations and providing tangible evidence to support serious allegations like clandestine clearances.