2018 (6) TMI 238 - AT - Central Excise

Clandestine removal - excesses of stock - enameled copper wire - Copper Scrap - retraction of statement - The appellant has contended the statement of Shri Sandeep Jain & Sameer Jain, director of Appellant unit were retracted by them - Held that - When the fact of retraction by way of affidavit was appearing in the Show Cause Notice itself, in that case the inculpatory statements could not have been made the ground for alleging clandestine removal. The adjudicating authority in such circumstances should have followed the provision of section 9(d) of the Central Excise Act, 1944 i.e. the statement should have been examined for its relevancy only after examination-inchief of the person whose statements were proposed to be relied - The Adjudicating Authority should have also noticed the fact as to whether there is any corroborative evidence in form of removal of goods, Identification of buyer, transportation of goods, purchase of raw material, employment of labour, receipt of consideration towards alleged clandestine sale is also required to be taken into consideration for demanding duty. It is appropriate to remand the case back to Adjudicating Authority for denovo consideration - appeal allowed by way of remand.

Summary

Issues:
1. Alleged duty evasion based on discrepancies in private production register.
2. Reliability of private production register as evidence.
3. Validity of retracted statements by directors.
4. Adjudicating authority's failure to consider corroborative evidence.

Analysis:
1. The Appeals were filed against the demand of duty and penalty confirmed by the Commissioner, Central Excise, Nasik, based on discrepancies found in the private production register of M/s Laurel Wires. The register indicated excess production of enameled copper wire and copper scrap without payment of duty. The Appellants contested the allegations, claiming the register was maintained without management's knowledge and lacked reliability due to lack of verification of entries by the concerned person.

2. The Adjudicating Authority upheld the demand, citing the clandestine nature of the concealed production in the private production register. The Authority found the register to be maintained by an employee of M/s Laurel Wires in a coded form, leading to the confirmation of demands and imposition of penalties, prompting the appeal by the Appellants.

3. The Consultant for the Appellants argued that the private production register was unreliable as it did not accurately reflect the production process, including the breakdown of output from the enameling machine. The Consultant highlighted the lack of verification by the Commissioner and the absence of corroborative evidence supporting the alleged clandestine removal. The Appellants also presented affidavits from directors retracting their earlier statements.

4. The Adjudicating Authority's decision was challenged based on the failure to consider corroborative evidence such as the removal of goods, identification of buyers, transportation details, raw material purchases, labor employment, and receipt of consideration for alleged clandestine sales. The Appellants' retracted statements were deemed insufficient grounds for alleging clandestine removal without proper examination and verification. Consequently, the case was remanded back to the Adjudicating Authority for a fresh consideration in light of the observations made, leading to the setting aside of the impugned order and allowing the appeals by way of demand.