2018 (1) TMI 264 - HC - Central Excise

Clandestine manufacture and removal - iron and steel products - burden of proof - Held that - The burden to prove clandestine manufacture and removal is on the revenue. Direct evidence of clandestine removal would rarely be available and the standard of proof has to be necessarily based on preponderance of probabilities. Conjunctures and surmises cannot be the basis of proof, when clandestine removal is alleged and for establishing the said charge, there should be positive evidence - when the department alleges clandestine production and removal of goods, without due proper accounting in the records and without payment of duty, the burden of establishing the allegation lies heavily on the department. In the case on hand, the department has not discharged the burden - appeal dismissed - decided against Revenue.

Issues Involved:
1. Legality and sustainability of the adjudicating authority's findings.
2. Validity of the Tribunal's rejection of the appeal on procedural grounds.
3. Non-joinder of parties in the show cause notice and subsequent appeal.
4. Allegation of clandestine removal of goods by the respondents.

Detailed Analysis:

1. Legality and Sustainability of the Adjudicating Authority's Findings:
The Commissioner of Central Excise, Coimbatore, extensively reviewed the evidence and submissions, ultimately finding no grounds to proceed against the assessees, leading to the dropping of all further proceedings initiated in the show cause notice dated 20.09.1999. The CESTAT, Chennai, after analyzing the evidence and statements, concluded that the appeal memorandum merely reflected comments and observations from the adjudicating order without presenting sufficient grounds to interfere with the Order-in-Original. The court agreed with this assessment, stating that both the Order-in-Original and the CESTAT's final order did not exhibit irrationality or perversity.

2. Validity of the Tribunal's Rejection of the Appeal on Procedural Grounds:
The Tribunal rejected the appeal on the grounds that the statement of facts was shabbily drafted, the appeal was not accompanied by a paper book with relevant documents, and the grounds of appeal were not properly set out but rather offered shallow comments on the adjudicating authority's observations. The court upheld this rejection, emphasizing the importance of a well-drafted appeal that clearly explains how the evidence was dealt with in the adjudication order.

3. Non-joinder of Parties in the Show Cause Notice and Subsequent Appeal:
The adjudicating authority and the Tribunal held that the show cause notice and the subsequent appeal were liable to be dismissed for non-joinder of parties. The court did not find any error in this holding, indicating that the procedural aspect of including all necessary parties was crucial for the validity of the proceedings.

4. Allegation of Clandestine Removal of Goods:
The Commissioner found that the quantification of demand in the show cause notice was not based on the final product that could be manufactured from unaccounted raw materials or on alleged cash receipts. The Commissioner noted the lack of evidence such as statements from suppliers or records of intercepted consignments. The Tribunal agreed, stating that the burden of proving clandestine manufacture and removal lies with the revenue, which had not been discharged in this case. The court reiterated that conjectures and surmises cannot form the basis of proof for clandestine removal and that there must be positive evidence to support such allegations.

Conclusion:
The court dismissed the Civil Miscellaneous Appeals, finding no substantial questions of law involved and upholding the concurrent findings of fact by both the adjudicating authority and the Tribunal. The burden of proving clandestine manufacture and removal was not met by the department, and the procedural deficiencies in the appeal justified its rejection.

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