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2022 (1) TMI 257 - AT - Central ExciseClandestine removal - M. S. Ingots - excess consumption of electricity - corroborative evidence or not - retraction of statements - entire demand is based upon the records recovered from Sh. S.K. Pansari, Proprietor of M/s. Monu Steel - HELD THAT - There is no evidence expect the said statement and private dairy entry of 3rd party i.e. of Sh. S.K. Pansari, which contains the name of the appellant. The law as to whether the third party records can be adopted as an evidence for arriving at the findings of clandestine removal, in the absence of any corroborative evidence is well settled. Only on the basis of statement of third party no demand could be made. The Hon ble High Court of Judicature at Allahabad in the matter of M/S. CONTINENTAL CEMENT COMPANY VERSUS UNION OF INDIA OTHERS 2014 (9) TMI 243 - ALLAHABAD HIGH COURT and also this Tribunal in the cases of M/S. RAIPUR FORGING PVT. LTD., SHRI SUNIL KEDIA, KRISHNA IRON STRIPS TUBES PVT. LTD., SHRI SUNIL AGARWAL, SHRI RAM ROLLING MILL, SHRI SANDEEP GIDWANI VERSUS CCE, RAIPUR-I 2016 (2) TMI 763 - CESTAT NEW DELHI , C.C.E. S.T. -RAIPUR VERSUS P.D. INDUSTRIES PVT. LTD. 2015 (11) TMI 455 - CESTAT NEW DELHI and COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, LUDHIANA VERSUS M/S ANAND FOUNDERS AND ENGINEERS 2015 (11) TMI 1166 - PUNJAB HARYANA HIGH COURT have categorically held that the findings of clandestine removal cannot be upheld based upon the third party documents unless there is clinching evidence of clandestine manufacture and removal of the goods. The penalty imposed on Shri Naren Kumar Mishra, Director of the appellant is also set aside. Appeal allowed - decided in favor of appellant.
Issues:
1. Justification of demand for alleged clandestine removal and clearance of M.S. Ingots. 2. Imposition of penalty under Section 11 AC and Rule 26. 3. Lack of corroborative evidence in the case. 4. Reliance on third party records for making demands. 5. Legal precedent regarding findings of clandestine removal based on third party documents. Analysis: Issue 1: The primary issue in this appeal pertains to the justification of the demand amounting to &8377; 6,54,599/- for the alleged clandestine removal and clearance of M.S. Ingots. The appellant, M/s. Alok Ispat Pvt. Ltd., contested the demand, arguing that the department's case solely relied on entries in a diary recovered from a third party, Mr. S.K. Pansari, without substantial corroborative evidence. The appellant denied the clearance of ingots through the said commission agent and emphasized the lack of proof regarding the clandestine removal. Issue 2: Penalties were imposed under Section 11 AC and Rule 26 on M/s. Monu Steels, Shri Naren Kumar Mishra, and M/s. Gopal Traders. The appellant challenged the imposition of these penalties, highlighting the absence of concrete evidence supporting the alleged clandestine activities. The authorized representative for the department reiterated the findings in the impugned order, emphasizing the acknowledgment of clearance by Shri Naren Kumar Mishra. However, a detailed analysis revealed discrepancies in the interpretation of statements and lack of substantial evidence. Issue 3: The crux of the matter revolved around the lack of corroborative evidence to substantiate the department's claims. The appellant's counsel argued that proceeding against the appellant based solely on a third party's diary entry was unjustified. The department's reliance on records recovered from Mr. S.K. Pansari without additional evidence raised questions about the validity of the demand and penalties imposed. Issue 4: The case highlighted the department's reliance on third party records, specifically entries from Mr. S.K. Pansari's diary, to initiate proceedings against various manufacturers, including the appellant. While some manufacturers admitted irregularities and duty liabilities based on these records, the appellant contested the allegations and emphasized the lack of evidence linking them to clandestine activities. The absence of inquiries from buyers or customers further weakened the department's case. Issue 5: Legal precedents were cited to support the argument that findings of clandestine removal cannot be upheld solely based on third party documents without substantial evidence of clandestine manufacture and removal of goods. Previous judgments emphasized the need for corroborative evidence beyond third party statements to substantiate demands related to alleged clandestine activities. The Tribunal's decisions in similar cases underscored the importance of concrete evidence in upholding such demands. In conclusion, the Tribunal allowed the appeal and set aside the impugned order, highlighting the lack of substantial evidence and the reliance on third party records without corroboration. The legal precedent established the requirement for clinching evidence to support findings of clandestine activities, emphasizing the importance of concrete proof in such cases.
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