2018 (10) TMI 758 - AT - Central Excise

Clandestine removal - demand based on statement furnished to the bank for inflated sales figures, non-duty paying invoices recovered during the course of investigation and statement of one Shri Mahesh Tiwari - Held that - During the impugned period, Shri Mahesh Tiwari was not related to the appellant, therefore, the statement of Shri Mahesh Tiwari cannot be the basis to allege clandestine removal of goods. Merely on the ground that appellant has issued certain invoices on which no duty has been paid and sales figure from the bank cannot be the reason to allege clandestine removal of goods in the absence of the other related evidences, such as, electricity consumption, procurement of raw material, how the goods have been cleared, how the extra labour has been employed and flow back of money - Admittedly, no effort has been made and the only effort has been made from the consignee who also stated that goods were not purchase from the appellant. Appeal allowed - decided in favor of appellant.

Summary

Issues: Allegation of clandestine removal of goods based on non-duty paying invoices and inflated sales figures.

Analysis:
1. The appellants appealed against an order confirming a demand of ?22,60,000 along with interest and penalty for allegedly issuing non-duty paying invoices during an investigation at their factory premises.
2. The investigation revealed discrepancies, including the issuance of certain invoices without duty payment, leading to suspicion of clandestine removal of goods by the appellants.
3. The appellant denied clearing any goods against the disputed invoices, claiming they were created to inflate sales figures for obtaining bank loans, with no incriminating statements made.
4. The Revenue relied on evidence like inflated sales figures submitted to banks, non-duty paying invoices, and a statement from an individual named Shri Mahesh Tiwari to support the demand confirmation.
5. The Tribunal found discrepancies in the Revenue's evidence, noting that the consignee mentioned on the invoices confirmed not receiving any goods, and Shri Mahesh Tiwari's statement was retracted the next day.
6. The Tribunal emphasized the lack of substantial evidence linking the non-duty paying invoices to clandestine removal, highlighting the absence of supporting factors like electricity consumption, raw material procurement, labor increase, or money flow back.
7. Citing a precedent, the Tribunal concluded that the charge of clandestine removal was unproven, setting aside the impugned order and allowing the appeals with consequential relief, if any.