2018 (7) TMI 598 - AT - Central Excise

Clandestine removal - entire demand was made on Input and Output norm of 1.3 1 basis - case of Revenue is that the Assessee failed to produce any evidence to substantiate that the goods were not cleared clandestinely - Held that - It is well settled that the burden of proof on the charge of clandestine removal of goods lies with the Revenue. It cannot be discharged in a casual manner - In the present case, the charge of clandestine removal is raised on the basis of the E.R-I Returns. For the Input/Output ratio, no enquiry was conducted. The Tribunal in the case of Hindustan Coca cola Beverages Pvt Ltd Vs. CCE & ST, Patna 2012 (5) TMI 525 - CESTAT, KOLKATA observed that the charge of clandestine removal of goods cannot be substantive only on a single parameter i.e. Input Output ratio. Appeal dismissed - decided against Revenue.

Issues:
1. Allegation of clandestine removal of goods based on higher consumption of Raw Petroleum Coke (RPC) for manufacturing Calcined Petroleum Coke (CPC).
2. Dispute regarding input/output ratio norm in manufacturing of CPC from RPC.
3. Burden of proof on the charge of clandestine removal of goods.
4. Application of legal precedents in similar cases.

Analysis:
1. The case involved an allegation of clandestine removal of goods against the assessee based on the higher consumption of Raw Petroleum Coke (RPC) for manufacturing Calcined Petroleum Coke (CPC). The Adjudicating authority confirmed the demand of duty, interest, and penalties, which was partially upheld by the Commissioner (Appeals) in one specific instance. The Revenue filed appeals against the Commissioner's decision, while the Assessee filed cross objections.

2. The dispute revolved around the input/output ratio norm in the manufacturing process of CPC from RPC. The Revenue contended that the Assessee had not provided a satisfactory explanation for the higher consumption of RPC, leading to the demand of duty. However, the Commissioner (Appeals) set aside the demand citing a lack of evidence to substantiate the clandestine removal of goods. The burden of proof regarding the charge of clandestine removal lies with the Revenue, and it was emphasized that the charge cannot be based solely on the input/output ratio without proper inquiry.

3. The judgment highlighted the importance of the burden of proof in cases of clandestine removal of goods. It was noted that the charge cannot be substantiated in a casual manner and must be supported by tangible evidence. The Tribunal's decision in a similar case emphasized that charges of clandestine removal cannot be upheld solely on the basis of input/output ratio without additional evidence. The judgment also referred to legal precedents to support the requirement of concrete evidence in such cases.

4. Legal precedents played a crucial role in the analysis of the case. Reference was made to a previous judgment where serious charges of clandestine removal were dismissed due to a lack of evidence and proper stock taking. The judgment highlighted that the burden of proving clandestine removal lies with the Revenue and cannot be established based on assumptions. The application of legal principles from previous cases supported the decision to dismiss the appeal filed by the Revenue and uphold the Commissioner's decision.

In conclusion, the judgment focused on the necessity of concrete evidence to support allegations of clandestine removal of goods, emphasizing the burden of proof on the Revenue and the importance of legal precedents in determining such cases. The decision ultimately dismissed the appeal filed by the Revenue and disposed of the cross objections, affirming the Commissioner (Appeals) decision.

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