2019 (4) TMI 1535 - AT - Central Excise

Clandestine removal - short accountal of a quantity of 674.402 MT of finished goods - no sufficient evidences provided to prove clandestine removal - HELD THAT - It is apparent that the department has not proved its case with sufficient evidences to sustain the charges of clandestine removal - demand do not sustain - appeal dismissed - decided against Revenue.

Summary

Issues: Alleged clandestine removal of finished goods without payment of Central Excise Duties, appeal against Adjudication Order, authenticity of Furnace Charge Sheets, burden of proof on department in case of clandestine removal.

Issue 1: Alleged Clandestine Removal of Finished Goods
The case involved the allegation that the respondent had short accounted a quantity of finished goods, leading to clandestine removal without payment of Central Excise Duties. The Adjudicating Authority confirmed the demand, interest, and penalties against the respondent, including the Managing Director. The Lower Appellate Authority set aside the Adjudication Order, prompting the Revenue to file an appeal against the decision.

Issue 2: Appeal Against Adjudication Order
The Revenue filed an appeal against the decision of the Lower Appellate Authority, challenging the setting aside of the Adjudication Order. The Respondent assessee also filed a cross objection in response to the appeal. Additionally, the Managing Director of the appellant company filed a separate appeal before the Lower Appellate Authority, which was subsequently disallowed, leading to an appeal before the Tribunal.

Issue 3: Authenticity of Furnace Charge Sheets
The authenticity and reliability of the Furnace Charge Sheets were questioned during the proceedings. The department relied on these sheets to establish the production of finished goods for comparison with the Daily Stock Account. The Respondent argued that the Furnace Charge Sheets were not authentic documents to prove actual production, emphasizing the need for concrete evidence to support the allegations of suppression and clandestine removal.

Issue 4: Burden of Proof in Case of Clandestine Removal
The Tribunal deliberated on the burden of proof in cases of clandestine removal, emphasizing that the department must establish the charges beyond doubt with affirmative, tangible evidence. The standard of proof required is absolute, not based on probabilities. Referring to decisions by higher judicial authorities, the Tribunal concluded that the department failed to provide sufficient evidence to sustain the charges of clandestine removal, leading to the dismissal of the appeal filed by the Revenue and the sustenance of the Order-in-Appeal dated 22/12/2014.

In summary, the Tribunal set aside the impugned Order-in-Appeal dated 31/05/2016, allowing the appeal filed by the appellant. The Tribunal upheld the Order-in-Appeal dated 22/12/2014, emphasizing the burden of proof on the department in cases of clandestine removal and the requirement for concrete, affirmative evidence to substantiate such serious allegations.