2013 (11) TMI 1285 - AT - Central Excise

Duty demand on the basis of private notebook - Held that - Taking into account of the statement of Shri T. Ramkumar, who has signed the mahazar and the statement of Smt. Rajeswari after three days of the seizure of the notebook, it is established recovery of the notebook from their factory - it is not ncesssary to establish the clandestine removal of the goods by producing evidence in the nature of supply of raw materials manufactured and cleared and sold - the appellant cleared the goods without payment of duty on the basis of the notebook Thus, demand of duty along with interest and penalty are justified. The demand of duty along with interest and penalty under Section 11AC of the Act, 1944 are upheld - As the penalty has already been imposed under Section 11AC of the Act, penalty under Rule 25 is set aside - as the penalty has already been imposed on the appellant -Thus, it is appropriate to set aside the penalty Decided partly in favour of Assessee.

Summary

Issues:
- Seizure of private notebook from factory
- Demand of duty, interest, and penalties based on notebook
- Dispute over recovery of notebook
- Cross-examination of witnesses
- Retraction of statement by son of Licensee
- Justification of duty demand without direct evidence of clandestine removal

Analysis:

The judgment pertains to two appeals arising from a common order regarding the manufacture of matches from machine-made dipped splints. The Central Excise officers seized a private notebook from the factory, leading to a Show Cause Notice for duty demand, interest, and penalties. The appellant disputed the notebook's recovery, requesting cross-examination of witnesses, which was denied. The appellant argued that the alleged clandestine removal lacked evidence of raw material supply, manufacture, and sale.

The Revenue contended that the son of the Licensee, in his statement, admitted the notebook's recovery and detailed the modus operandi of goods clearance. Despite the son's retraction later, the Revenue cited case laws supporting the denial of witness cross-examination based on the son's initial admission.

The judge noted the son's initial statement acknowledging the notebook's recovery and explaining the clearance of goods without duty payment. Despite the son's retraction in response to the Show Cause Notice, the judge found the recovery established based on the son's signed mahazar and the Licensee's subsequent statement. The judge emphasized that direct evidence of clandestine removal is not always necessary, depending on the case's circumstances.

Ultimately, the judge upheld the duty demand, interest, and penalty under Section 11AC of the Act, 1944. The penalty under Rule 25 was set aside, with provisions for penalty reduction upon timely payment. The penalty on the son of the Licensee was revoked, considering the penalty imposed on the appellant. The appeal of the appellant was allowed, and the judgment was pronounced in open court.