2018 (5) TMI 1054 - AT - Central Excise

Clandestine manufacture and removal - Cigarettes - the allegation of the Department is that unaccounted cut tobacco (raw material) was purchased from M/s Deccan Tobacco Processors Ltd. (DTPL), Hyderabad, which was used by M/s Kanpur Cigarettes Ltd. (KCL) to manufacture cigarettes which were clandestinely removed without payment of excise duty - penalty - Held that - the allegation of clandestine removal of cigarettes from the factory is not sustainable as the cigarettes were manufactured by undertaking, a process involving raw material of different types i.e CTP, cut tobacco etc. procurement of which are fully controlled under the supervision of the Excise Officers who maintains the XT- 1 diary. Further, the clandestine manufacture/removal of the goods requires use of extra machinery, extra consumption of power, employment of extra labour and transporter and/or buyer will also have to be identified. The supply of the extra raw- material will also have to be established to prove the clandestine removal of the cigarettes. But, in the instant case, it appears that the Department has not collected corroborative evidence to substantiate their claim of clandestine removal of cigarettes. Neither any incriminating material was found from franchisee factory at the time of search nor any statement even of single worker of the factory was recorded to prove allegation of clandestine removal. For clandestine removal, which is a serious charge, the strict evidence is required like supply of the raw-material, consumption of extra-electricity, transportation of the confiscated goods and sale of the finished goods. Unfortunately, no evidence has been collected by the Department pertaining to these aspects. Penalty u/r 209A of CER on various persons - Held that - When there is no clandestine removal, then no penalty can be imposed under Rule 209A. It may also be mentioned that the show cause notice was issued on 30.09.1995 and the impugned adjudication order was passed on 06.03.2014, almost after 19 years. It is the allegation of the assessee-Appellants that no relied upon documents (RUDs) or cross-examination were provided - Held that - No useful purpose will be served after the lapse of more than two decades to ask the authorities to re-examine the issues especially when the matter was remanded earlier. Appeal allowed - decided in favor of appellant-assessee.

Summary

Issues Involved:
1. Alleged evasion of Central Excise duty by franchisee cigarette manufacturers.
2. Non-supply of relied upon documents (RUDs) and denial of cross-examination of witnesses.
3. Applicability of Rule 209A for imposition of penalty.
4. Allegations against specific individuals and entities regarding clandestine removal of cigarettes.

Detailed Analysis:

1. Alleged Evasion of Central Excise Duty:
The Directorate General of Anti Evasion (DGCEI) alleged that franchisee cigarette manufacturers were evading Central Excise duty by not accounting for full production and clandestinely removing suppressed production. The inquiry covered the period from 14.11.1990 to 31.03.1995, resulting in a duty demand on M/s Kanpur Cigarettes Ltd. (KCL) and M/s GTC Industries Ltd. Various penalties were also imposed on employees/Directors of GTC. The Tribunal previously remanded the matter to determine the actual evader and to ensure the supply of requisite documents.

2. Non-supply of Relied Upon Documents (RUDs) and Denial of Cross-examination:
The assessee-Appellants argued that the show cause notice issued on 29.09.1995 led to prolonged litigation due to the Department's failure to produce documents and provide cross-examination of witnesses. Despite Tribunal directions, 34 witnesses were not made available for cross-examination, and essential documents were not provided. The appellants contended that the absence of these documents implied they did not exist, rendering the charges unsustainable. They cited several case laws to support their argument, including Andaman Timber Industries vs CCE, Kolkata-II and Commissioner of Customs (Import) vs Wings Electronics.

3. Applicability of Rule 209A for Imposition of Penalty:
The Tribunal examined whether penalties under Rule 209A of the Central Excise Rules were justified. Rule 209A requires physical handling or dealing with goods known to be liable for confiscation. The Tribunal found no evidence that GTC or its Directors physically handled the goods or had knowledge of their confiscation. The Tribunal cited the case of CCE vs Bansal Steel Corporation & Ors., emphasizing that physical possession and handling are prerequisites for penalties under Rule 209A.

4. Allegations Against Specific Individuals and Entities:
The Tribunal found no substantial evidence to support the Department's allegations against GTC, its Directors, or other individuals. It noted that the manufacturing process was under strict supervision by Excise Officers, and no extra machinery, labor, or raw materials were found to indicate clandestine removal. The Tribunal also highlighted the absence of any incriminating material from the franchisee factory and the lack of statements from factory workers. Regarding penalties on specific individuals like Mr. Sanjay Dalmia and Mr. Anurag Dalmia, the Tribunal found no evidence of their involvement in physical handling or knowledge of confiscation of goods.

Conclusion:
The Tribunal concluded that the allegations of clandestine removal were not substantiated by evidence. It noted the lack of corroborative evidence such as extra raw material supply, electricity consumption, and transportation records. The Tribunal also emphasized that penalties under Rule 209A require physical dealing with goods, which was not proven in this case. Consequently, the Tribunal set aside the impugned order in toto and allowed all appeals filed by the assessee-Appellants.

Final Judgment:
The impugned order was set aside, and all appeals filed by the assessee-Appellants were allowed. The judgment was pronounced in the open court on 17.05.2018.