2023 (3) TMI 886 - AT - Central Excise

Levy of penalty u/r 26 (1) of Central Excise Rules, 2002 - clandestine removal - allegation mainly based on some diaries recovered from brokers and follow up action was taken upon various manufacturers mentioning in the said diaries of the brokers - HELD THAT - The present appellants were also involved in the case of Shri Hari Steel Industries and also in the case of M/s. Pure Alloys Ltd. in the said cases the Tribunal has taken a view that the appellants are not liable for the penalty. The common investigation was carried out in the present case and cases of M/s. Pure Enterprises Pvt Ltd, 1999 (1) TMI 146 - CEGAT, MUMBAI M/s. Pure Alloys Ltd and Shri Hari Steel Industries 2022 (8) TMI 1251 - CESTAT AHMEDABAD . It is also observed that same statements, evidences such as broker s diaries etc were relied upon in all the cases, therefore, facts of all the three cases are absolutely identical. Since this Tribunal has already taken a view regarding penalty on the appellant in this Tribunal s orders, the penalty in the present case is also not sustainable. The decision of this Tribunal in the case of Himanshu Nandalal Jagani Ors 2022 (9) TMI 428 - CESTAT AHMEDABAD , relied upon where it was held that It is seen from the said slips that there is no mention of the manufacturer s name and therefore there is no direct correlation with the main noticee in this case, namely Pure Alloys Limited. Moreover, it is seen that there was no examination in chief or cross examination done and therefore, the only link between these weighment slips and the alleged manufacturer namely Pure Alloys, is the statements of Juvansinh Jeshabhai Solanki and Nareshbhai Ramsang Rana which cannot be admitted as evidence in absence of Examination under Section 9D of Central Excise Act. In these circumstances, no penalties in respect of these weighment slips also can be imposed. From the above order of this Tribunal it can be seen that identical facts and issues were involved in the above cases of M/s. Pure Alloys Ltd, Shri Hari Steel Industries , Bansal Castings wherein all the present appellants were implicated as a common person. Therefore, following the aforesaid order the penalty in the present case is not sustainable. Penalties set aside - appeal allowed.

Summary

Issues Involved:
1. Allegation of clandestine removal.
2. Imposition of penalty under Rule 26(1) of Central Excise Rules, 2002.
3. Reliance on broker's diaries and third-party evidence.
4. Cross-examination of witnesses.
5. Corroborative evidence.

Summary:

1. Allegation of Clandestine Removal:
The appellants were allegedly involved in the clandestine removal of goods by M/s Pure Enterprises Pvt. Ltd. based on diaries recovered from brokers. The adjudicating authority confirmed the demand and imposed penalties under Rule 26(1) of Central Excise Rules, 2002.

2. Imposition of Penalty:
The Commissioner (Appeals) upheld the penalties imposed by the original authority. The appellants contested this decision, citing previous Tribunal orders where penalties in identical cases were set aside.

3. Reliance on Broker's Diaries and Third-Party Evidence:
The Tribunal noted that the entire case was based on broker's diaries and statements. In previous cases like Shri Hari Steel Industries and Bansal Castings, the Tribunal had set aside penalties due to the reliance on third-party evidence without corroboration.

4. Cross-Examination of Witnesses:
The Tribunal emphasized the necessity of cross-examining witnesses whose statements were relied upon. In the absence of such cross-examination, the statements could not be accepted as evidence. This principle was upheld in various judgments, including Rama Shyama Papers Ltd.

5. Corroborative Evidence:
The Tribunal found no corroborative evidence linking the appellants to the alleged clandestine removal. The records from brokers and their statements, without cross-examination and corroboration, were deemed insufficient to sustain the penalties.

Conclusion:
The Tribunal concluded that the penalties imposed on the appellants were not sustainable due to the reliance on uncorroborated third-party evidence and the lack of cross-examination of key witnesses. The penalties were set aside, and the appeals were allowed.

Pronouncement:
The judgment was pronounced in the open court on 16.03.2023.