2018 (3) TMI 911 - AT - Central Excise

Clandestine removal - entry into gate register - entries in respect of the said goods was not mentioned in the statutory record - Held that - issue is covered by the Litigation Policy of CBEC communicated through letter dated 17.08.2011 as amended - just because the entries not made into Gate register, it cannot be said that there is clandestine removal - appeal dismissed - decided against Revenue.

Issues:
1. Appeal against Order-in-Appeal No.59-60-CE/GZB/05 dated 09.05.2005 passed by Commissioner (Appeals) Central Excise and Customs, Ghaziabad.
2. Allegations of goods cleared without payment of duty.
3. Sustainability of demand of Central Excise duty.
4. Entry into gate register.
5. Appeal memorandum praying to set aside the demand of duty of ?5,28,738.
6. Coverage of the issue by the Litigation Policy of CBEC.

Analysis:
1. The appeals were filed by the Revenue against the Order-in-Appeal dated 09.05.2005 passed by the Commissioner (Appeals) Central Excise and Customs, Ghaziabad. The appeals arose from a common order and were taken together for decision. The respondent was engaged in the manufacture of Storage tanks and Garbage Bins, paying a concessional rate of duty under Notification No. 1/93 dated 01.03.1993. An investigation was conducted, leading to a show cause notice dated 16.03.2000 demanding Central Excise duty of ?13,99,577. The Original Authority confirmed the demand and imposed a penalty. The Commissioner (Appeals) later held that the allegations in the show cause notice were not sustainable, leading to the allowance of the appeals. However, the Tribunal remanded the matter concerning clandestine removal and consequent penalty back to the Commissioner (Appeals).

2. The Commissioner (Appeals) in the impugned Order-in-Appeal dated 09.05.2005 addressed the issue of goods cleared without payment of duty. It was noted that certain goods were cleared without payment of duty based on entries in the outgoing register, which were not mentioned in the statutory record. The quantity of goods involved Central Excise duty of ?5,28,738. The Commissioner (Appeals) held that the demand raised on the basis of the gatekeeper's register was not sustainable, leading to the unsustainable demand of duty and penalty. The Revenue appealed against this order, focusing on the entry into the gate register.

3. The ground of appeal primarily revolved around the entry into the gate register. The appeal memorandum specifically prayed to set aside the demand of duty amounting to ?5,28,738. The parties were heard, and the records were examined. The issue was found to be covered by the Litigation Policy of CBEC as communicated through a letter dated 17.08.2011. Consequently, both appeals filed by the Revenue were dismissed, granting the respondents consequential relief as per law.

This detailed analysis covers the issues raised in the legal judgment, outlining the progression of the case and the final decision rendered by the Appellate Tribunal CESTAT, ALLAHABAD.

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