2014 (3) TMI 201 - AT - Central Excise

Clandestine removal - manufacture of Vimal brand gutka and zarda - statements of various authorized representatives of the transporters were recorded - Revenues case is mainly based upon the evidences collected at the transporter s end - Held that - The presence of 120 machines against the declared number of 65 machines can be the supporting evidence if there is other cogent evidence of unaccounted manufacture and clearance of gutka by VCPL. It may not be out of place to mention here that the period involved in the present appeals is prior to compounded levy based on the number of machines installed and as such, the number of machines installed in the factory is not a relevant factor. In respect of appeals filed by VCPL and its Director, Shri H. Sunder, only duty demand of ₹ 6,93,285/- along with interest under Section 11 AB and penalty of equal amount under Section 11 AC is upheld. The remaining duty demand against VCPL including the duty demand on 9 bags of gutka seized from office of M/s. Harsh Transport Co. at Bhopal and 30518 pouches of Vimal gutka seized from Shri Lakshmi Prakash Gupta, Seoni, interst thereon and penalty under Section 11 AC is set aside. The penalty under Rule 26 of Central Excise Rules on Shri H. Sunder is reduced to ₹ 5,00,000/- (Rupees Five Lakh only). Penalty under Rule 26 of Central Excise Rules on M/s.GG Carriers, M/s. Delhi Indore Transport Company, M/s. Singhal Transport Company, Shri Paramjit Singh Kakkar, Prop., M/s. Singhal Transport Company, M/s. Harsh Transport Co. and M/s. Gopi Road Lines is set aside and the appeals filed by them and Shri Paramjit Singh, Prop., M/s. Singhal Transport Company are allowed. - Decided partly in favor of assessee.

Issues Involved:
1. Alleged clandestine removal of gutka by VCPL.
2. Evidence based on transporters' documents.
3. Statements of transporters' employees.
4. Statements of VCPL's employees.
5. Seizure of goods from various locations.
6. Excess raw material and unaccounted packaging materials.
7. Cross-examination of witnesses.
8. Penalties on various parties.

Analysis of the Judgment:

1. Alleged Clandestine Removal of Gutka by VCPL:
The Revenue alleged that VCPL clandestinely removed a significant quantity of gutka without paying duty. The basis for this allegation was primarily the documents and statements obtained from various transport companies.

2. Evidence Based on Transporters' Documents:
The Revenue relied heavily on documents recovered from transporters like GG Carriers, Singhal Transport, Delhi Indore Transport, Gopi Road Lines, Harsh Transport, and Laxmi Freight Carriers. These documents included loading registers, GRs, and truck guidance notes, which allegedly showed transportation of gutka without corresponding invoices from VCPL.

3. Statements of Transporters' Employees:
Statements from employees of transport companies were used to support the allegations. For instance, Shri Harjinder Singh of GG Carriers and Shri Paramjit Singh of Singhal Transport provided statements indicating the transportation of vimal brand gutka. However, during cross-examination, many of these employees retracted or clarified their statements, weakening the Revenue's case.

4. Statements of VCPL's Employees:
VCPL's employees, including Shri H. Sunder, Director, and Shri R.K. Tripathi, Supervisor, denied involvement in clandestine activities. Shri Dubey, another employee, admitted to helping customers book transport for cash sales but denied involvement in clandestine removals. The statements of VCPL's employees were largely exculpatory.

5. Seizure of Goods from Various Locations:
Goods were seized from different locations, including transporters' premises and dealers. For instance, 210 bags of gutka were seized from Singhal Transport, and 140 bags from Laxmi Freight Carriers. However, the link between these goods and VCPL was not conclusively established.

6. Excess Raw Material and Unaccounted Packaging Materials:
The Revenue alleged unaccounted receipt and use of raw materials and packaging materials by VCPL. For example, it was claimed that VCPL received more canvas bags from M/s. Ram Lal Ram Chandra than accounted for. However, the evidence was found insufficient to conclusively link these materials to clandestine production.

7. Cross-Examination of Witnesses:
The cross-examination of witnesses revealed inconsistencies and retractions in their statements. Many witnesses, including transporters' employees, clarified during cross-examination that they did not have direct knowledge of the brand name of the goods transported, thereby weakening the Revenue's case.

8. Penalties on Various Parties:
Penalties were imposed on VCPL, its employees, and various transporters. However, the Tribunal found that the evidence was insufficient to uphold most of these penalties. For instance, penalties on transporters like GG Carriers, Delhi Indore Transport, and Gopi Road Lines were set aside due to lack of conclusive evidence.

Conclusion:
The Tribunal concluded that the evidence provided by the Revenue was insufficient to establish the allegations of clandestine removal of gutka by VCPL. The reliance on third-party documents and statements without corroborative evidence was deemed inadequate. Consequently, most of the duty demands and penalties were set aside, except for a few specific instances where the evidence was found to be more credible.

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