2018 (12) TMI 1237 - AT - Central Excise

Clandestine removal - Goa 1000 Gutkha - appellants were given inspection of all the documents relating to the case, and an inference is drawn on the basis of these letters, ignoring the letters and submissions of the appellant and without providing copies of these 3 letters - principles of natural justice - Held that - No evidence of clandestine manufacture and or removal of gutkha from the appellant s factory at Jodhpur has been adduced in the notice. Though Appellants factory at Jodhpur was searched on the very first day of the investigations, no evidence of clandestine manufacture and or removal, or any excess shortage of any raw material (except a very negligible variation) or finished goods were noticed. No evidence whatsoever was found, showing unaccounted transportation of goods from the Jodhpur factory of the appellant. In the entire investigation no evidence of clandestine manufacture or removal of Gutkha or unaccounted receipt of any raw material /packing material in the appellant s factory required for clandestine manufacture & sale of Gutkha could be brought to light except the recovery of certain documents from the office of Raj Group of companies in Thane allegedly showing procurement of raw materials. Even these evidences recovered from one Mr. Suresh B. Jajra, during corss-examination were revealed to be pertaining to M/s. Royal Marwad, Ahmedabad and Meenakshi Foods Pvt. Ltd. other franchisees engaged in the manufacture of Goa 1000 Gutkha. Revenue have not corroborated its allegations with sufficient reliable evidence - the allegations in the show cause notice are based more on assumptions and presumptions, having no legs to stand - appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Allegation of clandestine removal of goods.
2. Validity of evidence and statements.
3. Denial of cross-examination and inspection of documents.
4. Imposition of penalties under Rule 26.

Issue-wise Detailed Analysis:

1. Allegation of Clandestine Removal of Goods:
The appellants were accused of clandestinely removing goods from their factory in Jodhpur without paying the required duty. The demand was based on documents and statements obtained from various premises, including the transporter’s godown. However, during the investigation, no concrete evidence of clandestine manufacture or removal of goods was found at the Jodhpur factory. The search did not reveal any significant discrepancies in raw materials or finished goods. The alleged clandestine activities were not substantiated by any unaccounted transportation or cash transactions.

2. Validity of Evidence and Statements:
The primary evidence relied upon by the Revenue was a notebook recovered from G.M. Carriers, which allegedly detailed unaccounted transportation of goods. However, the notebook’s authenticity was disputed by the transporter’s representatives, and the key witness, J.G. Shaikh, was not produced for cross-examination, rendering his statements unreliable under Section 9D of the Act. Other witnesses retracted their statements, claiming they were made under duress. The documents recovered from Suresh B. Jajra were related to other companies and not the appellant, further weakening the case.

3. Denial of Cross-Examination and Inspection of Documents:
The appellants were denied the opportunity to cross-examine key witnesses and inspect crucial documents, which were essential for their defense. Despite repeated requests, the Adjudicating Authority did not provide copies of the cross-examination records or the original documents. This denial of due process was a significant violation of the principles of natural justice and prejudiced the appellants' ability to defend themselves effectively.

4. Imposition of Penalties under Rule 26:
Penalties were imposed on the appellants under Rule 26 for allegedly aiding in the clandestine removal of goods. However, the Tribunal found that there was no evidence to support the allegations of clandestine activities. The other appellants were also found not to have played any role in the alleged activities, and no goods were confiscated. Consequently, the penalties under Rule 26 were deemed not maintainable.

Conclusion:
The Tribunal concluded that the Revenue failed to corroborate its allegations with sufficient and reliable evidence. The show cause notice was based on assumptions and presumptions, lacking substantial proof. The denial of cross-examination and inspection of documents further prejudiced the appellants' defense. Therefore, the impugned order was set aside, and all appeals were allowed, entitling the appellants to consequential benefits.