2018 (6) TMI 1341 - AT - Central Excise

Clandestine removal - Gutkha - cross-examination of witnesses - Manufacture of alleged quantity of Gutkha could not be established by Revenue - Held that - The statements recorded during investigation in respect of Shri S.P. Pandey and Shri Rajesh Verma are not having a character of admissible evidence - During the whole course of proceedings there is no positive evidence to establish that the alleged quantity of 133452000 pouches of Gutkha was manufactured by the appellant. Revenue could not establish manufacture of alleged quantity of Gutkha - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Alleged clandestine removal of goods without payment of duty
- Admissibility of evidence from statements recorded during investigation
- Establishment of manufacture to demand excise duty

Analysis:

Issue 1: Alleged clandestine removal of goods without payment of duty
The case involved the appellant, a Gutkha manufacturer, facing allegations of clandestinely removing goods without paying excise duty. The investigation revealed unaccounted finished goods and raw materials seized during searches, leading to a show cause notice for duty recovery. The appellant argued that no evidence supported the presumption that goods booked through Railway were clandestinely removed. The Tribunal noted the lack of proof linking the seized goods to the appellant's manufacturing, emphasizing the need to establish manufacture for duty demand. Citing a previous case, the Tribunal ruled that duty cannot be demanded without proving manufacture. Consequently, the impugned Order-in-Original was set aside in favor of the appellant.

Issue 2: Admissibility of evidence from statements recorded during investigation
The appellant challenged the reliance on statements by Shri S.P. Pandey and Shri Rajesh Verma, highlighting the lack of cross-examination. The Tribunal agreed that the statements lacked the character of admissible evidence due to the absence of cross-examination. Notably, Shri Jaganath's statement did not confirm the goods booked under his name were removed without duty payment. The Tribunal emphasized the importance of establishing a direct link between the appellant and the alleged quantity of Gutkha to support duty imposition.

Issue 3: Establishment of manufacture to demand excise duty
Central to the case was the appellant's contention that revenue failed to establish the manufacture and clandestine removal of the alleged Gutkha quantity. The Tribunal echoed the principle that excise duty hinges on proving manufacture, a requirement not met in the absence of concrete evidence. Relying on precedent, the Tribunal concluded that the revenue could not establish the manufacture of the disputed goods, leading to the appeal's allowance and the setting aside of the Order-in-Original. The appellant was granted consequential relief in accordance with the law.

In summary, the judgment addressed the lack of evidence linking the appellant to the alleged clandestine removal of goods and emphasized the necessity of establishing manufacture to demand excise duty. The ruling underscored the importance of admissible evidence and upheld the appellant's appeal, setting aside the original order and granting appropriate relief.