2018 (2) TMI 1110 - AT - Central Excise

Clandestine removal - Gutkha under the brand name Dilbagh - It appeared to the officers of Central Excise department from the loose slips found, clearances of Gutkha without payment of duty - demand based on loose slips found and statements of persons - Held that - the Annexure A which quantified the demand was based on various presumptions including the quantity of HSD required for running for one hour, the number of pouches that can be manufactured per hour from each machine and that 81 machines were running all throughout - the evidence of consumption of HSD was based on the record collected by Revenue from fuel stations and the same record was not confronted before the partner of the appellant M/s.Som Aromatics and therefore the said evidence became third party evidence. The entire show cause notice is presumptive - Revenue could not establish manufacture of 116582400 pouches of Gutkha during the period from October, 2006 to November, 2006 and Revenue could not establish manufacture of 1437782400 pouches of Gutkha for the period from December, 2006 to August, 2007 alleged in the said show cause notice. Central Excise duty is on manufacture - In the present case the burden to prove that above stated quantity of pouches were manufactured by M/s.Som Aromatics was on Revenue. Revenue could not establish manufacture of above stated quantities of pouches of Gutkha during above stated period. The SCN is presumptive - appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Alleged clandestine removal and evasion of duty by M/s. Som Aromatics.
2. Validity of evidence and statements used to support the duty demand.
3. Presumptive nature of the show cause notice.
4. Cross-examination and admissibility of third-party evidence.
5. Confirmation of duty demand and imposition of penalties.

Issue-wise Detailed Analysis:

1. Alleged Clandestine Removal and Evasion of Duty by M/s. Som Aromatics:
The case revolves around M/s. Som Aromatics, which was engaged in manufacturing Pan Masala containing Tobacco (Gutkha) under the brand name Dilbagh. The Central Excise officers inspected the factory premises and found loose slips indicating the clearance of 820 bags of Gutkha without payment of duty. Additionally, gate passes and statements from various individuals were collected, leading to a show cause notice demanding Central Excise duty of ?52,76,44,354 for the period October 2006 to August 2007. The original authority confirmed a demand of ?61,63,517 but dropped the larger demand of ?52,14,80,837 due to lack of corroborative evidence.

2. Validity of Evidence and Statements Used to Support the Duty Demand:
The show cause notice was based on several presumptions, including the consumption of High-Speed Diesel (HSD) and the production capacity of the machines. The original authority noted that the investigation did not substantiate any corroborative evidence to show that raw materials were procured for the quantity of goods alleged to have been clandestinely removed. The reliance on loose slips, gate passes, and statements was deemed insufficient without corroborative evidence. The original authority also noted the absence of evidence for illicit procurement, transportation, and storage of raw materials and finished goods.

3. Presumptive Nature of the Show Cause Notice:
The Tribunal found the show cause notice to be presumptive, as it was based on assumptions about the number of machines running, their production capacity, and the consumption of HSD. The Tribunal agreed with the counsel for M/s. Som Aromatics that the entire notice was based on presumptions rather than concrete evidence. The quantification of the demand was based on presumed production figures and presumed hours of operation, which were not substantiated by solid evidence.

4. Cross-examination and Admissibility of Third-party Evidence:
The Tribunal highlighted that the evidence from fuel stations and other third-party sources was not confronted with the partners of M/s. Som Aromatics, making it inadmissible as per the Indian Evidence Act. The original authority had allowed cross-examination of some individuals, but the Tribunal noted that the evidence remained unsubstantiated. The Tribunal cited the case of L.K. Advani vs. Central Bureau of Investigation, emphasizing that third-party evidence without proper confrontation and cross-examination cannot be converted into legal evidence.

5. Confirmation of Duty Demand and Imposition of Penalties:
The original authority confirmed a demand of ?61,63,517 and imposed penalties on M/s. Som Aromatics and its partners. However, the Tribunal found that the confirmed amount was part of the larger presumptive demand and thus not sustainable. The Tribunal dismissed the appeal filed by the Revenue, holding that the entire show cause notice was presumptive and that the Revenue failed to establish the manufacture of the alleged quantities of Gutkha. Consequently, the penalties imposed were also set aside.

Conclusion:
The Tribunal dismissed the Revenue's appeal and allowed the appeals filed by M/s. Som Aromatics and its partners. The show cause notice was deemed presumptive, and the evidence presented by the Revenue was found insufficient to substantiate the allegations of clandestine removal and duty evasion. The Tribunal emphasized the need for concrete evidence to support such demands and highlighted the inadmissibility of third-party evidence without proper confrontation and cross-examination.