2018 (1) TMI 985 - AT - Central Excise

Clandestine removal - Gutka - illegal factory premises - denial of opportunity of cross-examination - closure of factory - declaration of machinery - Held that - one machine has been declared by Shri Mukesh Katheil in his registered premises, but the same has been intimated as closed in the month of July, 2008. During the course of search, three undeclared premises have been detected where 12 packing machines were found working and engaged in packing Paheli brand gutka bearing the registration number of Shri Mukesh Katheil. In terms of the Packing Machine Rules, Central Excise duty is liable to be paid on the 12 packing machines - the issue for adjudication is whether the duty liability is to be borne by Shri Mukesh Katheil, proprietor of M/s Shree Swaroop Products. It stands fairly established that Shri Mukesh Katheil, proprietor of M/s Shree Swaroop Product has taken on rent four premises and making use of raw material prepared in the premises adjacent to the registered factory, sent the raw material-mix to the three unregistered premises. In the three premises, by installing 12 machines illegally, gutka has been packed and sold bearing the brand name Paheli. On the basis of the evidences produced by Revenue, the case is fairly established. It is settled proposition that in quasi judicial proceedings, the level of evidence required to be produced is to be such that the case is established to the extent of preponderance of probability. The standard of proof need not be as required in the case of judicial proceedings. In the facts and circumstances of the case, Shri Mukesh Katheil has carried out manufacture of gutka using 12 packing machines in illegal factories - demand upheld. Penalties of ₹ 10 lakhs each on various persons - Held that - all the persons have played an important part in abetting the clandestine manufacture of gutka in the illegal factories. They were all employees of Shri Mukesh Katheil and have worked in various capacities and have facilitated the huge evasion of Central Excise duty. Consequently, they are liable for penalty under Rule 26 of the Central Excise Rules, 2002 - penalties upheld. Appeal dismissed.

Summary

Issues Involved:
1. Legality of the impugned order regarding clandestine removal of goods.
2. Validity of penalties imposed on various individuals under Rule 26 of the Central Excise Rules, 2002.
3. Adequacy of evidence and procedural fairness, including the right to cross-examination.

Detailed Analysis:

1. Legality of the Impugned Order Regarding Clandestine Removal of Goods:
The main noticee, engaged in the manufacture and sale of Paheli brand gutkha, declared one pouch packing machine under the Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008. However, during a search on 23rd and 24th July 2008, and subsequently on 6th August 2008, it was found that gutkha was being manufactured using 12 packing machines in three undeclared premises. These premises were not declared to the department, and operations were carried out using illegally drawn electricity and a DG set. The department, based on intelligence reports and recorded statements, made a case for clandestine removal against the main noticee. The impugned order demanded Central Excise duty of ?1.5 crores along with interest and penalties of an equal amount from the main noticee.

2. Validity of Penalties Imposed on Various Individuals Under Rule 26 of the Central Excise Rules, 2002:
Penalties were imposed on several individuals who were involved in the illegal operations. The appellants argued that the penalties were non-speaking and unjustified. However, the tribunal upheld the penalties, noting that these individuals played significant roles in abetting the clandestine manufacture of gutkha. They were employees of the main noticee and facilitated the evasion of Central Excise duty, making them liable under Rule 26 of the Central Excise Rules, 2002.

3. Adequacy of Evidence and Procedural Fairness, Including the Right to Cross-Examination:
The appellants contended that no opportunity for cross-examination was provided for certain individuals whose statements were relied upon. The tribunal noted that while the adjudicating authority did not deny the request for cross-examination, the witnesses did not appear despite several summonses. The tribunal held that the evidence, including statements from the owners of the undeclared premises and workers, sufficiently linked the clandestine operations to the main noticee. The tribunal emphasized that in quasi-judicial proceedings, the standard of proof is preponderance of probability rather than the higher standard required in judicial proceedings.

Conclusion:
The tribunal upheld the impugned order, confirming the demand of Central Excise duty of ?1.5 crores along with interest and an equal amount of penalty from the main noticee. The penalties imposed on various individuals under Rule 26 of the Central Excise Rules, 2002, were also upheld. The tribunal dismissed all the appeals, concluding that the evidence presented by the Revenue sufficiently established the case of clandestine manufacture and removal of gutkha.