2005 (11) TMI 128 - AT - Central Excise

Summary

Issues:
1. Duty evasion through clandestine removal of goods.
2. Imposition of penalty under Rule 173Q.
3. Admissibility of balance sheet as evidence.
4. Presumption as to documents under Section 36A.

Analysis:
1. The appellants were found to have clandestinely removed finished goods without paying the Central Excise duty leviable on them, as revealed by a higher production and sales figure in their balance sheet compared to the statutory records. The Commissioner (Appeals) upheld the demand of duty amounting to Rs. 67,595 based on evidence from the balance sheet and Central Excise records, despite the appellants' argument that no evidence was presented against them. The Commissioner reduced the penalty imposed under Rule 173Q from Rs. 67,595 to Rs. 10,000, emphasizing the gravity of the case but acknowledging the need for a lenient view in penalty imposition.

2. The Commissioner (Appeals) acknowledged that Sections 11AC and 11AB were not applicable at the material time of the case but invoked Rule 173Q for imposing a penalty. While reducing the penalty, the Commissioner upheld the duty demand, emphasizing the appellants' liability for clandestinely removing goods without payment of duty.

3. The appellants argued that the balance sheet, being a statutory document filed under the Companies Act and audited by a Chartered Accountant, should not be relied upon as evidence. However, the Commissioner found the balance sheet, along with the statutory records maintained by the appellants, to be crucial in establishing the case of clandestine removal. The Commissioner rejected the argument that the valuation of goods had lacunae, as it was not raised in the appeal or before the lower authorities.

4. The learned Jt. C.D.R. referred to Section 36A, which presumes the truth of the contents of documents produced under the Act unless proven otherwise. The balance sheet, considered a statutory document, was relied upon as evidence against the appellants. The Commissioner upheld the presumption regarding the balance sheet's contents and its role in establishing the case of clandestine removal, ultimately rejecting the appeal and affirming the impugned order.

In conclusion, the judgment by the Appellate Tribunal CESTAT, Mumbai upheld the duty demand and penalty under Rule 173Q against the appellants for clandestinely removing goods without payment of Central Excise duty, emphasizing the significance of the balance sheet and statutory records as evidence in establishing the case.