2018 (4) TMI 761 - AT - Central Excise

Clandestine manufacture and removal - it was alleged that the appellants have traded, but have used Common Invoice Book for supply of traded goods as well as manufactured goods - Held that - in the absence of any cogent & positive evidences in the Show Cause Notices as well as in the impugned Orders showing clandestine manufactured & clandestine removal of goods in the guise of trading, the demands of Central Excise duty confirmed by the Adjudicating Authority on the basis of evidences for the earlier period, is not sustainable - appeal allowed - decided in favor of appellant.

Summary

Issues:
Whether the appellants are liable to pay Excise duty on certain items of traded goods.

Analysis:
The dispute in these appeals revolved around the liability of the appellants to pay Excise duty on traded goods. The appellants used a 'Common Invoice Book' for both traded and manufactured goods, leading to recurring demands alleging clandestine manufacture of surgical goods supplied as traded goods without paying Excise duty. The Commissioner (appeals) noted the appellant's submission of records and documents, including purchase invoices, ledger accounts, and balance sheets, indicating a separate trading division. However, the Adjudicating Authority failed to consider these documents and legal defenses presented by the appellants. The Commissioner emphasized the requirement for sufficient evidence to prove clandestine manufacture and removal of goods, citing various judicial pronouncements supporting this principle.

The Commissioner highlighted the absence of concrete evidence for the period in question regarding clandestine manufacturing and removal of goods under trading bills. Emphasizing the need for positive evidence in Show Cause Notices and Orders to sustain demands for Excise duty, the Commissioner found the demands based on earlier evidence unsustainable. Consequently, the Commissioner set aside the Orders-in-Original dated 31/03/2016 and 28/02/2017, allowing the appeals of the appellant. The Tribunal, on a previous date, confirmed the acceptance of the Order-in-Appeal dated 07/11/2017 by the Department, leading to the allowance of the appeals and setting aside of the impugned order based on the coverage of facts by the said Order-in-Appeal.

In conclusion, the judgment focused on the necessity of substantial evidence to establish clandestine manufacturing and removal of goods for imposing Excise duty. The Commissioner's decision to set aside the demands was based on the lack of concrete proof for the relevant period, emphasizing the importance of evidentiary support in such cases. The Tribunal's confirmation of the Department's acceptance of the Order-in-Appeal further supported the allowance of the appeals and the overturning of the impugned order.