2015 (11) TMI 455 - AT - Central Excise

Duty demand - Clandestine removal of goods - Imposition of penalty - Held that - The records reveal that the whole case of clandestine removal is based merely on the entries found in the books of Commission agent and transporters. They were acting as agent and transporter not only for the Respondent but also for other manufacturers. The department has not conducted any physical verification of stock of finished goods or raw material. The allegation is not supported by data of purchase of excess raw materials or consumption of electricity during the relevant period. The details of payment and flow of cash from the buyer to Respondent is not established by any evidence. - there is no proof like parallel invoice, or other documents maintained by manufacturer corroborating the date collected from such commission agent and transporters. No investigation is conducted whether Respondent actually manufactured such large quantities during the relevant time. If Revenue wants to rely upon the entries of document seized from the premises of third party, it is for them to prove the genuineness of those entries with the Respondent. The proceedings and allegation of clandestine removal cannot be based on surmises and conjectures or mere suspicions. The appellant has not been able to demonstrate anything to disturb the findings made in the impugned order. - Decided against Revenue.

Summary

Issues:
Appeal against Order-in-Original confirming demand and recovery of excise duty for alleged clandestine removal of Sponge Iron.

Analysis:
1. Background: The case involved an appeal by the Revenue challenging an order confirming the demand and recovery of excise duty for the alleged clandestine removal of 796.380 MT Sponge Iron by the respondent.

2. Facts: The respondent was engaged in the manufacture of Sponge Iron. Following searches at the premises of a commission agent and two transporters, discrepancies were noted in the records related to the dispatch of Sponge Iron. The Revenue alleged clandestine removal of 796.280 MT of Sponge Iron during 2005-2007, leading to the imposition of duty, interest, and penalties.

3. Revenue's Argument: The Revenue contended that discrepancies in the records of the commission agent and transporters, where no sales invoices were issued by the respondent for certain quantities of Sponge Iron, indicated clandestine removal. The Revenue argued that vital evidence was overlooked by the Commissioner (Appeals).

4. Respondent's Defense: The respondent's counsel argued that the Revenue's case was solely based on third-party records without corroborating evidence to establish clandestine removal. The impugned order highlighted the lack of concrete evidence, emphasizing the need for proof beyond mere entries in records.

5. Bench's Observations: The Bench scrutinized the evidence presented and emphasized the necessity of concrete evidence to establish clandestine removal. It noted that reliance on third-party records without corroboration was insufficient. The lack of physical verification, absence of evidence on raw material purchase or electricity consumption, and failure to establish cash flow between parties weakened the Revenue's case.

6. Conclusion: The Tribunal dismissed the Revenue's appeal, highlighting the insufficiency of evidence to support the allegations of clandestine removal. It emphasized the importance of concrete proof and dismissed the case based on mere suspicions or surmises.

In conclusion, the judgment underscores the significance of substantial evidence in establishing allegations of clandestine removal, emphasizing the need for corroboration and concrete proof beyond mere entries in third-party records.