2017 (12) TMI 224 - AT - Central Excise

Clandestine removal - corroborative evidences - retraction of statements on which reliance was placed upon - Held that - no search was conducted at the business premises of the assessee-Appellants. The Department had not taken into account the consumption of raw material in the appellants factory. So, it is very difficult to say that the raw material was supplied by the assessee-Appellants. For want of evidence, all the statements which were recorded, were retracted later - no demand can be raised on the basis of statements which were retracted, especially when no corroborative evidence was collected by the Department to substantiate the allegation of clandestine removal. Clandestine removal is very serious charge which requires corroborative evidence and in the instant case, no corroborative evidence was collected by the Department - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Appeal against order-in-original dated 28.02.2017 for the period 26.08.2008 to 31.11.2008.
- Allegations of clandestine removal against the appellants.
- Dispute involving poultry farm search, gutkha packing machines, and brand name products.
- Retraction of statements by involved persons.
- Lack of corroborative evidence by the Department.
- Involvement of various individuals in the manufacturing process.

Analysis:
1. The case involves appeals against an order-in-original dated 28.02.2017 for the period 26.08.2008 to 31.11.2008. The dispute arose from a search at a poultry farm where gutkha packing machines and brand name products were found.

2. Allegations of clandestine removal were made against the appellants based on the search conducted on the farm. The Department claimed that raw material was not manufactured on-site but brought readymade by the appellants.

3. The case saw retraction of statements by several individuals involved, creating inconsistencies in the evidence presented. The Department levied penalties based on statements that were later retracted, leading to a lack of corroborative evidence.

4. The involvement of various individuals in the manufacturing process, such as Sh. Dhanpat Singhee, Sh. Om Prakash Dubey, and Sh. Manoj Tripathi, raised questions about their roles and responsibilities in the alleged clandestine operation.

5. The Tribunal found that the Department failed to collect sufficient corroborative evidence to substantiate the allegations of clandestine removal. No search was conducted at the appellants' business premises, and the consumption of raw material was not considered, weakening the case against the appellants.

6. The lack of proper investigation and the failure to include key individuals, such as Sh. Om Prakash Dubey and Sh. Sandeep Mann, as co-noticees in the case, highlighted procedural irregularities in the Department's actions.

7. Considering the seriousness of the charge of clandestine removal, the Tribunal emphasized the need for corroborative evidence, which was lacking in this case. As a result, the impugned order was set aside, and all appeals filed by the assessee-Appellants were allowed on 04.12.2017.