2006 (7) TMI 46 - AT - Central Excise

Central Excise Aerated waters Clandestine removal Allegation of clandestine production and removal cannot be established in the absence of any tangible evidence on record Impugned order set aside

Summary

Issues:
1. Allegations of clandestine manufacture and removal of aerated waters.
2. Application of standard output norms and calculation of duty demand.
3. Burden of proof on Revenue for allegations of clandestine removal.
4. Comparison of the present case with a similar case involving loss and wastage.
5. Reliance on legal precedents to determine the sufficiency of evidence.

Analysis:
1. The appellants faced allegations of clandestine manufacture and removal of aerated waters, leading to demand notices for duty. The charges were based on discrepancies in production records and statements obtained during investigations, indicating additional production removed without duty payment.

2. The appellants contested the allegations by arguing that standard output norms do not account for factors affecting actual production yield, such as startup losses, wastage, and machinery stabilization. The Commissioner observed a shortfall in production yield compared to norms, attributing it to underreporting and duty evasion.

3. The Tribunal highlighted that the burden of proving clandestine removal lies with the Revenue, requiring tangible evidence. Legal precedents emphasized the need for substantial proof beyond theoretical calculations to establish clandestine activities, as mere discrepancies in production cannot lead to duty confirmation.

4. A similar case involving loss and wastage at another unit of the appellant resulted in the vacating of notices by the Commissioner, considering factors affecting production. This comparison underscored the importance of considering operational challenges in determining duty liabilities.

5. Legal arguments relied on Supreme Court decisions to differentiate cases based on evidence availability. The Tribunal found the lack of concrete evidence in the present case, distinguishing it from precedents involving fabricated accounts. Consequently, the impugned order was set aside, granting relief to the appellants based on insufficient evidence and unwarranted assumptions.