2012 (9) TMI 635 - AT - Central Excise

Demand of duty clandestine removal of goods Held that - Once it was established by the assessee that all four units were engaged in the manufacture of similar product accompanying with the specific defence that the entire raw material for the purpose was primarily received at Ghaziabad unit - merely because the evidence in the form of challans and transfer documents from Ghaziabad unit to other three units was not produced, that will not be sufficient to reject the contention sought to be raised on behalf of the appellants - in case of clandestine removal, the onus lies upon the Department to prove the same with cogent evidence - appellant not indulged in suppression of production and clandestine removal - appeals succeed

Issues Involved:
1. Clandestine removal of goods.
2. Verification of raw material records.
3. Transfer of raw materials between units.
4. Denial of cross-examination.
5. Limitation and penalty.

Detailed Analysis:

1. Clandestine Removal of Goods:
The core issue in these appeals is the charge of clandestine removal of goods by the appellants. The Commissioner, Ghaziabad, confirmed a duty demand of Rs. 4,96,14,497/- along with interest and an equal amount of penalty. Additionally, the plant, building, and machinery were ordered to be confiscated, with an option to redeem them on payment of a redemption fine of Rs. 10 lakhs. Penalties of Rs. 2 lakhs were also imposed on each of the three Directors.

2. Verification of Raw Material Records:
The Department's visit to the appellants' premises on 13-11-2011 and subsequent perusal of records revealed discrepancies in the raw material records for the period from 1998-99 to 2001-2002. The Department issued a show cause notice on 26-3-2003 based on these findings. The appellants contended that the raw material received at the Ghaziabad unit was for all four units, including those in Delhi, and not solely for the Ghaziabad unit. They argued that the impugned order was based on statements of employees and records of raw material receipt at Ghaziabad, ignoring their defense that the raw material was also used in other units.

3. Transfer of Raw Materials Between Units:
The appellants submitted that the raw material received at Ghaziabad was transferred to other units in Delhi, and they provided balance sheets showing the actual sale of the final product and payment of duty at each unit. However, the Department argued that the defense of maintaining consolidated records at the head office was raised only in response to the show cause notice and not during the investigation. The appellants failed to produce transport receipts or other evidence to support their claim of transferring raw materials to other units. The Commissioner disbelieved the appellants' contention due to the lack of records at Mohannagar and the impracticality of transferring raw materials without maintaining records.

4. Denial of Cross-Examination:
The appellants argued that their request for cross-examination of witnesses was unjustifiably denied. However, the Tribunal found no substance in this contention, noting that the witnesses' statements did not significantly support the appellants' case or disclose any prejudice caused to them. The denial of cross-examination was not deemed a ground to invalidate the order.

5. Limitation and Penalty:
The appellants contended that the show cause notice was issued beyond the period of limitation and that there was no justification for invoking the extended period. They also disputed the liability to pay the penalty. However, the Tribunal did not find it necessary to address these grounds in detail, given the findings on the main issues.

Conclusion:
The Tribunal concluded that the Department failed to produce cogent evidence to support the charge of clandestine removal. The appellants had established that all four units were engaged in manufacturing similar products and that the raw material received at Ghaziabad was transferred to other units. The balance sheets disclosed production, sale, and payment of duty for each unit. The Department did not investigate whether the raw material for the other units was procured from sources other than the alleged transfer. The Tribunal set aside the impugned order, allowing the appeals.

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