2018 (8) TMI 93 - AT - Central Excise

Clandestine production and removal - Gutkha - demand based on confessional statement - Held that - The confirmation of demand was solely on the basis of confessional statement of Shri Manoj Hora and therefore, following the ruling by Hon ble Gujarat High Court in COMMISSIONER OF CENTRAL EXCISE VERSUS SAAKEEN ALLOYS PVT. LTD. 2014 (5) TMI 606 - GUJARAT HIGH COURT , it is held that the confirmation of demand is not sustainable - since the demand is not liable to be confirmed equal amount of penalty is also not liable to be imposed. Appeal allowed - decided in favor of appellant.

Summary

Issues:
- Confirmation of demand based on confessional statement
- Validity of confiscation of goods
- Applicability of penalty

Confirmation of Demand based on Confessional Statement:
The appellant was engaged in the manufacture of Pan Masala and Gutkha and declared 20 pouch packing machines for duty payment. However, during an inspection, 5 undeclared machines were found with unbranded Gutkha and loose Gutkha, leading to a demand of ?62,50,000 in Central Excise duty. The appellant contested the show cause notice, arguing that the finished goods seized could have been manufactured from the declared machines. The Tribunal noted that the demand was solely based on a confessional statement and cited a ruling by the Hon'ble Gujarat High Court that confessional statements alone cannot be the foundation for levying Excise duty in the absence of cogent evidence. Consequently, the Tribunal held that the demand was not sustainable, leading to the dismissal of the penalty as well.

Validity of Confiscation of Goods:
The appellant also challenged the confiscation of seized goods, including Gutkha and packing material. The appellant argued that the loose Gutkha did not bear a brand name, making it exempt from duty, and the packing material was not used in manufacturing. The Tribunal accepted these contentions, ruling that the confiscated goods were not liable for confiscation. Therefore, the impugned Order-in-Original was set aside, and the appeal was allowed.

Applicability of Penalty:
In light of the finding that the demand was not sustainable due to reliance on a confessional statement, the Tribunal concluded that the penalty was also not justified. As a result, the appellant was relieved of the penalty amount. The Tribunal directed that the appellant shall be entitled to consequential relief as per the law. The judgment was pronounced on 31/07/2018 by the Members of the Tribunal, leading to the allowance of the appeal in favor of the appellant.