2015 (8) TMI 98 - AT - Central Excise

Clandestine manufacture and removal of goods - Whether main appellant has manufactured and cleared Hydraulic Jacks clandestinely as per the investigation carried out by officers of Central Excise (AE), Rajkot - Held that - Main appellant was getting Hydraulic Jacks manufactured from other 15 job workers as per Para 12.6 of the OIA dated 19.02.2010. Nothing is reflecting in the last statement dated 16.05.2006 of Shri Suresh G. Vekaria whether the clandestine clearances recorded in the diary also contained the goods manufactured on job work basis from other job workers mentioned in Para 12.6 of the OIA dated 19.02.2010. For this purpose the cross-examination of the authors of the diaries was essential which has not been allowed to the appellant. Even if it is presumed that appellant was capable of carrying out all the processes leading to manufacture of Hydraulic Jacks then also it has not been established by the Revenue as to how much finished goods were the clandestine clearance made by the main appellant. Observations the fact of manufacture of Hydraulic Jacks and quantification of clandestine clearances by the main appellant fails miserably. Secondly, it is now a well established law that cases of clandestine removal can not be established only on the basis of few statements, especially in this case where the first recorded statement is held to be incorrect and given by a person who is not the author of the diary. Appeal filed by the main appellant is, therefore, required to be allowed as the case of clandestine manufacture and clearance by the main appellant is not established and corresponding penalties are also required to be set-aside. - Decided in favour of assessee.

Summary

Issues Involved:
1. Whether the main appellant, M/s. Radhika Hydraulics, manufactured and cleared Hydraulic Jacks clandestinely.
2. Adequacy of manufacturing facilities of the main appellant.
3. The role of sister concerns and job workers in the manufacturing process.
4. Reliability of statements and evidence used to establish clandestine manufacture and clearance.
5. Imposition of penalties on the main appellant and other appellants.
6. Eligibility for cum-duty benefit and reduced penalty.

Issue-wise Detailed Analysis:

1. Clandestine Manufacture and Clearance:
The main issue was whether the main appellant clandestinely manufactured and cleared Hydraulic Jacks. The Revenue's case was based on the admission statements of the main appellant and other related parties. However, the Tribunal noted that the statements were inconsistent and lacked corroborative evidence. The Tribunal concluded that the case of clandestine manufacture and clearance was not established, as the statements alone were insufficient to prove such allegations.

2. Adequacy of Manufacturing Facilities:
The main appellant argued that they did not have the capacity to manufacture complete Hydraulic Jacks and only produced parts, with other processes being outsourced to job workers and sister concerns. The Tribunal observed that a Chartered Engineer's certificate confirmed the limited manufacturing capabilities of the main appellant. The lower authorities did not verify the manufacturing facilities, relying instead on circumstantial evidence, which the Tribunal found inadequate.

3. Role of Sister Concerns and Job Workers:
The main appellant contended that certain processes were carried out by sister concerns and job workers. The Tribunal noted that the clearances of the sister concerns were not proposed to be clubbed with the main appellant's clearances, and the Revenue failed to establish that all manufacturing activities were conducted by the main appellant. The Tribunal emphasized that the manufacturing activities of the sister concerns and job workers should have been considered separately.

4. Reliability of Statements and Evidence:
The Tribunal found the statements recorded during the investigation to be unreliable. The statements of the main appellant's proprietor were inconsistent, and the person maintaining the diary of clandestine clearances did not quantify the clearances attributed to the main appellant. The Tribunal highlighted the importance of cross-examination of witnesses, which was not allowed in this case, further undermining the reliability of the evidence.

5. Imposition of Penalties:
Given that the case of clandestine manufacture and clearance was not established, the Tribunal held that the penalties imposed on the main appellant and other appellants were not justified. Consequently, the penalties were set aside.

6. Cum-duty Benefit and Reduced Penalty:
The Tribunal did not address the issues of cum-duty benefit and the option of a 25% reduced penalty, as the main issue on merits was decided in favor of the main appellant.

Conclusion:
In conclusion, the Tribunal allowed the appeals filed by all the appellants, providing consequential relief. The Tribunal found that the Revenue failed to establish the clandestine manufacture and clearance of Hydraulic Jacks by the main appellant, and the penalties imposed were unwarranted. The judgment emphasized the need for reliable evidence and proper verification of manufacturing capabilities in such cases.