2009 (5) TMI 226 - AT - Central Excise

Charge of evasion of duty This is an appeal filed by the Revenue against impugned order in which Commissioner allowed the appeal filed by the respondents against differential duty confirmed against them under Section 11A of the Central Excise Act and equal amount of penalty imposed on them under Section 11AC Day book showing excess realization day book was seized from premises of assessee who denied its ownership - We find that charge of evasion cannot be found solely on the basis of records of third party. - The Day Book cannot be relied on as the author of its contents could not be identified and his statement obtained. Revenue has not been able to establish receipt of excess amounts against clearances of yarn by the respondents with any reliable evidence. The Commissioner (A) also had found that the Day Book and the records of the broker did not match in entirety. appeal is dismissed

Summary

Issues:
1. Appeal against differential duty and penalty under Section 11A and 11AC of the Central Excise Act.
2. Reliability of evidence from a Day Book recovered from the premises of the respondents.
3. Allegation of evasion of duty based on discrepancies between Day Book entries and payments by a third party.
4. Lack of evidence to substantiate evasion of duty.
5. Validity of the Commissioner's findings and decision.

Analysis:
1. The appeal was filed by the Revenue against the Commissioner's order allowing the respondents' appeal against the confirmed differential duty and penalty under Sections 11A and 11AC of the Central Excise Act. The impugned demand was based on discrepancies between amounts realized and duty payments on Viscose Staple Fibre yarn clearances made by the respondents during 1997-1999.

2. The original authority raised the demand citing a Day Book recovered from the respondents' premises, showing higher realizations than the duty payments. The Commissioner found that the Day Book tallied with payments from a yarn broker, but there was no substantial evidence beyond the Day Book and the broker's records. The Commissioner noted the lack of identification of the Day Book's author and discrepancies in correlating entries between the Day Book and the broker's records.

3. The appeal by the Revenue contended that the Day Book entries matching the broker's records were sufficient evidence of excess realization and duty evasion. However, the Tribunal emphasized that reliance solely on a third party's records, without direct links to the transactions, was insufficient to establish evasion. The inability to identify the Day Book's author and lack of evidence on excess amounts received by the respondents further weakened the Revenue's case.

4. The Commissioner's decision to dismiss the demand and penalty was upheld by the Tribunal, emphasizing the need for concrete evidence to prove duty evasion. The Tribunal found that the Revenue's appeal lacked merit as it failed to establish a direct link between the Day Book entries and the alleged evasion. The discrepancies between the Day Book and the broker's records raised doubts on the reliability of the evidence presented.

5. Ultimately, the Tribunal sustained the Commissioner's order and rejected the Revenue's appeal, highlighting the insufficiency of evidence to support the allegations of duty evasion. The decision underscored the importance of concrete proof in establishing tax liabilities and the inadequacy of relying solely on third-party records without direct verification.