2019 (2) TMI 77 - AT - Central Excise

Clandestine removal - MS Rounds, Flats etc - allegation based on higher of electricity - principles of audi alteram partem - Held that - The sole reliance to allege a clandestine activity rests on the uncorroborated statements of the bill traders. Admittedly, such statements are neither given to the assessee for rebuttal, nor did the Revenue think it fit to subject those persons to cross-examination by the assessee. Hence, their statements cannot be taken into consideration - The action of the Revenue authorities is therefore clearly hit by the principles of audi alteram partem and hence, the consequent Orders are clearly unsustainable for which reason, the same is set aside. Even with regard to alleged electricity consumption, no documentary evidence is available nor has there been any attempt to prove procurement of raw materials, proof for transportation or even payment outside the books, since it is the settled position of law that allegations howsoever strong, cannot take the place of proof. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Recovery of duty for manufacturing and clearance without payment, confirmation of allegations in Show Cause Notice, appeal against Order-in-Appeal, consideration of evidence in de novo proceedings, reliance on statements of bill traders, higher consumption of electricity as evidence, legal principles of audi alteram partem.

Analysis:
The case involved the appellant, engaged in manufacturing MS Rounds and Flats falling under Chapter 72 of the Central Excise Tariff Act, 1985, facing a Show Cause Notice for recovery of duty due to alleged clearance without payment during 1994-95 and 1995-96. The initial Order-in-Original confirming the proposals in the Show Cause Notice was set aside by the Commissioner (Appeals) in an appeal filed by the appellant. However, the Department appealed to the Tribunal, leading to a remand for de novo consideration with a focus on establishing clandestine production and clearance with concrete evidence, allowing the appellant to present all legal pleas. The Tribunal emphasized the need for thorough examination of factors to decide the issue judiciously.

In the subsequent de novo proceedings, the adjudicating authority considered statements of suppliers of raw materials and electricity consumption in alleged clandestine removal. However, the authority concluded that excess electricity consumption alone was insufficient evidence for excess production and removal, lacking corroborative evidence to confirm the allegations. The Revenue appealed the decision, citing private records and statements of bill traders and brokers as proof of clandestine removal, leading to a second Order-in-Appeal in their favor based on higher electricity consumption and statements of concerned individuals.

Upon further appeal by the appellant, the first appellate authority rejected the appeal, relying on findings of the adjudicating authority, statements of bill traders, and allegations of higher electricity consumption. However, during the hearing before the Tribunal, the appellant's counsel highlighted the lack of access to statements for rebuttal and absence of corroborative evidence for the Revenue's claims. The Tribunal noted the failure to provide statements for rebuttal and the absence of documentary evidence to support the allegations of clandestine activity, emphasizing the legal principle of audi alteram partem. The Tribunal set aside the previous Orders, emphasizing that allegations, no matter how strong, cannot substitute for concrete proof, and allowed the appeal with full consequential benefits according to law.