2013 (7) TMI 751 - AT - Central Excise

Clandestine Removal of goods Held that - Allegation of clandestine removal are required to be proved by production of sufficient and tangible evidence. Recovery of kaccha slips from the gate keeper of another unit read with the inculpating statement of the authorized representative of third party cannot be held to be admissible evidence so as to uphold the allegation of clandestine removal, especially when such persons have not been tendered for cross-examination Decided against the Revenue.

Summary

Issues: Alleged clandestine removal of goods without payment of duty based on kuccha slips recovered from a third party, sufficiency of evidence, corroboration, cross-examination rights of the respondent.

Issue 1: Sufficiency of Evidence
The case revolved around the alleged clandestine removal of goods without payment of duty by the respondent based on kuccha slips recovered from a third party. The Revenue contended that the slips, along with the statement of the authorized representative of the third party, were sufficient evidence to prove the clandestine removal. However, the Commissioner (Appeals) held that such evidence was not admissible without corroboration and cross-examination of the concerned individuals. The Commissioner emphasized the need for tangible evidence to support the allegations of clandestine removal, stating that mere statements and recovered slips were insufficient to establish the charge. The Commissioner further noted that the demand was calculated based on approximations and presumptions, lacking a reasonable and cogent basis to hold the respondent liable for duty payment.

Issue 2: Corroboration and Cross-Examination
The respondent argued that the slips recovered from the gatekeeper of the third party, without any corroboration or further investigation, were inadequate to prove the clandestine removal of goods from their factory. They highlighted the absence of investigations at their end, lack of statements from their owner, and the denial of cross-examination rights for the gatekeeper and authorized signatory of the third party. The Commissioner (Appeals) agreed with the respondent's stance, emphasizing that allegations of clandestine removal required solid corroboration and tangible evidence. The Commissioner ruled that the evidence presented by the Revenue, without proper corroboration and cross-examination, was insufficient to establish the charge of clandestine removal, especially considering the serious nature of the accusation.

Conclusion:
In conclusion, the judgment by Ms. Archana Wadhwa of the Appellate Tribunal CESTAT NEW DELHI dismissed the Revenue's appeal against the order passed by the Commissioner (Appeals). The decision was based on the insufficiency of evidence, lack of corroboration, and the denial of cross-examination rights to the respondent. The Commissioner (Appeals) emphasized the importance of tangible evidence and proper corroboration to support allegations of clandestine removal, stating that mere recovered slips and statements were not adequate to establish the charge. The judgment highlighted the need for a reasonable and cogent basis to hold a party liable for duty payment in cases of alleged clandestine removal.