2018 (2) TMI 1310 - AT - Central Excise

Clandestine removal - demand based upon the two chit books recovered during the visit of the officers to main appellant s factory premises - Held that - the Adjudicating Authority has totally misconstrued the provisions of the law and the law as settled by the various decisions of the Tribunal as to confirmation of the demands on clandestine removal. It is now settled law, clandestine removal is a very serious allegation and needs to be corroborated with solid evidence. The confirmation of demand on clandestine removal on solely a single statement of authorised signatory is totally incorrect and the main appellant s were seeking cross examination of this gentlemen which were not offered to. The law is settled on this point as to if no cross examination is granted in respect of a person them the statement cannot be considered as of any evidentiary value. Penalty on the director - Held that - in entire proceedings the Adjudicating Authority has not pointed out, any role that could be attributable to the Shri Rajkishore Chaturvedi for visiting him with penalty of ₹ 10 lakhs under Rule 209A of the Central Excise Rules, 1944. As the entire demand raised against the main appellant is set aside, no penalty can be imposed on the director - penalty set aside. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Confirmation of demand on alleged clandestine removal of goods.
2. Validity of penalties imposed on the main appellant and the director.

Analysis:
1. The appeals were filed against an Order-in-Original confirming demands for Central Excise duty on alleged clandestine removal of goods by the main appellant. The initial visit to the factory premises revealed shortages in final products and raw materials. The main appellant discharged duty on the shortages before the show cause notice was issued. Subsequent investigations led to the issuance of a show cause notice based on entries in chit books found during the visit. The Adjudicating Authority confirmed the demands, imposed penalties, and ordered confiscation. The Tribunal remanded the case for reconsideration, emphasizing reconciliation and adherence to principles of natural justice. The Adjudicating Authority, in the impugned order, upheld the demand and penalties, citing discrepancies in reconciliations submitted by the appellant.

2. Despite the absence of representation from the appellant, the Tribunal proceeded with the disposal. The Departmental Representative supported the Adjudicating Authority's order, highlighting the incriminating nature of the recovered chit books and statements by the authorized signatory. However, upon review, the Tribunal found flaws in the confirmation of demands solely based on the chit books and a single statement without corroboration or cross-examination. The Tribunal emphasized the need for solid evidence in cases of clandestine removal. Additionally, the lack of statements from directors or purchasers of the goods raised doubts about the allegations. Citing relevant case law, the Tribunal concluded that the demand and penalties were unsustainable and set them aside. The penalties on the director were also deemed unjustified due to the main appellant's exoneration.

In conclusion, the Tribunal overturned the Adjudicating Authority's decision, ruling in favor of the main appellant and the director by setting aside the demand, penalties, and confiscation. The judgment highlighted the importance of corroborative evidence and adherence to legal principles in cases of alleged clandestine removal, ultimately leading to the dismissal of the charges against the appellants.