2009 (7) TMI 997 - AT - Central Excise

Clandestine removal - no evidence - Held that - The fact of clandestine removal is required to be established by production of sufficient records and the same cannot be based upon the entries made in a rough note book - there is no evidence on record corroborating the clandestine activities of the assessee - appeal dismissed - decided against Revenue.

Summary

Issues:
1. Appeal against order passed by Commissioner (Appeals)
2. De novo proceedings and remand by the Tribunal
3. Reliance on rough note book as crucial evidence
4. Lack of evidence corroborating clandestine activities
5. Rejection of appeal filed by the Revenue

Analysis:

1. The judgment deals with an appeal filed against the order passed by the Commissioner (Appeals). The appellant was aggrieved by the said order, leading to the present appeal. During the hearing, only the learned SDR appeared for the Revenue, while no representation was made on behalf of the Respondent.

2. The impugned order was passed by the Commissioner (Appeals) in de novo proceedings after the matter was remanded by the Tribunal in a previous order. The Tribunal observed discrepancies in the statements recorded and noted the lack of concrete evidence to establish illicit activities. The Tribunal directed a reevaluation of the case, emphasizing the need for thorough investigation and determination of the issues.

3. The appellate authority granted relief to the respondents based on a detailed examination of the case records and the Tribunal's remand order. The investigation primarily relied on a rough note book recovered during a search, which allegedly contained details of unaccounted removals. However, the authority highlighted the inadequacies in the investigation, such as the failure to identify the writers of the note book, which raised doubts about the credibility of the evidence.

4. The Revenue, in its appeal, reiterated the significance of the note book as crucial evidence supporting the case of clandestine removals. However, the judgment emphasized the necessity of establishing clandestine activities through concrete records and evidence, rather than solely relying on entries in a rough note book. The Commissioner (Appeals) correctly pointed out the absence of corroborative evidence supporting the allegations of clandestine activities by the assessee.

5. Ultimately, the judgment rejected the appeal filed by the Revenue, upholding the decision of the Commissioner (Appeals). The lack of substantial evidence and the failure to adequately investigate and establish clandestine activities led to the dismissal of the Revenue's appeal. The judgment was pronounced in court on the specified date, concluding the legal proceedings in this matter.