2009 (7) TMI 245 - AT - Central Excise

Allegation is that goods have been cleared without payment of duty - The demand is confirmed based on certain private records. A perusals of the private records indicate that the heading refers to fibres used and ribbon manufactured . Only on certain dates, there is indication of some quantity of ribbon as manufactured. The said private records also indicate removal of colouring fibre to R&D division. It is admitted by the learned SDR that no statement has been taken from the representative of the appellant about the private records. We find that the quantities shown to have been removed are of assorted varieties and of varying lengths. There has been accountal of manufacture of ribbon as indicated. In the absence of any investigation, the conclusion arrived at by the original authority and confirmed by the learned Commissioner (Appeals) lacks foundation. The plea of the appellant that they were only issuing waste material and recovering ribbon wherever possible has to be accepted in the absence of contrary evidence brought out in any investigation. Impugned order demanding the duty is set aside

Summary

Issues:
- Duty evasion on removal of optical fibre and cables without payment
- Reliance on private records for demand confirmation
- Dispute over R&D facility existence during the relevant period

Analysis:
The case involved an appeal against an order confirming a duty demand for the removal of optical fibre and cables without payment. The original authority had imposed a demand of Rs. 3,76,542 along with interest and penalty, which was partially reduced by the Commissioner (Appeals) to Rs. 3,45,068. The appellant argued that they did not have an R&D facility during the disputed period and had only recovered ribbons from waste cables and fibres, which were exported. The Commissioner (Appeals) had relied on an advertisement to infer the existence of an R&D facility, a decision contested by the appellant.

The Tribunal considered the submissions and private records presented by both parties. The private records indicated the removal of fibres and manufacturing of ribbons, with some entries referring to significant lengths of cables. The Tribunal noted that the quantities removed were of assorted varieties and lengths, with evidence of ribbon manufacture. Importantly, no statement was taken from the appellant's representative regarding the private records. The Tribunal found that the lower authorities' conclusions lacked a proper investigation foundation. They accepted the appellant's claim of issuing waste material and recovering ribbons, especially in the absence of contradictory evidence.

Ultimately, the Tribunal set aside the Commissioner (Appeals) order, allowing the appeal with consequential relief. The decision highlighted the importance of thorough investigation and evidence in confirming duty demands, emphasizing the need for proper documentation and statements to support such claims. The case underscored the significance of factual accuracy and the burden of proof in tax disputes, cautioning against relying solely on circumstantial evidence or assumptions without proper verification.