2016 (11) TMI 1172 - AT - Central Excise

Clandestine removal of goods - Held that - billty books and challans resumed from transporter M/s BFC are not relied for issue of show cause notice and it is claimed by Revenue that Annexure-A to the show cause notice was prepared on the basis of billty books and challans resumed from transporter. Annexure-A indicates that 9403 number of bags of Gutkha were cleared through M/s BFC in the guise of Pashu Ahaar. The statements as stated above of the witnesses which were dealing with goods in BFC have categorically stated during their cross-examination that Gutkha was never booked in the guise of Pashu Ahaar. Therefore, we hold that there is no evidences to establish that 9403 bags of Gutkha was manufactured by M/s P & J Aromatics - We hold that Revenue could not establish that on the basis of information given by Railway Authorities, M/s P & J Aromatics manufactured 40553 bags of Gutkha and cleared the same without payment of duty. We also find that Raw materials cannot be confiscated under Rule 25 of Central Excise Rules, 2002. We therefore, modify the impugned Order-in-Original by setting aside the confirmation of demand of ₹ 13,06,19,045/- and setting aside the penalty of ₹ 13,06,19,045/- and setting aside the order for recovery of interest on ₹ 13,06,19,045/- and setting aside the penalty of ₹ 50 lakh on Shri Praveen Kumar Singhal and setting aside penalty of ₹ 20 lakh on Shri Yogendra Kumar Singhal and setting aside the confiscation of 31.6kg and 1282.4kg of Jeet brand lamination and confiscation of Jeet brand lamination and outer valued of ₹ 7,61,875/- and HDPE outer valued at ₹ 9,600/- and confiscation of 6417kgs of Jeet brand lamination & outer valued at ₹ 8,39,500/-. Appeal partly allowed - decided in favor of appellant.

Issues Involved:
1. Alleged clandestine removal of goods without payment of Central Excise duty.
2. Confiscation of goods and raw materials.
3. Demand of Central Excise duty and penalties.
4. Validity of statements and cross-examinations.
5. Authority to confiscate raw materials under Rule 25 of Central Excise Rules, 2002.

Issue-Wise Detailed Analysis:

1. Alleged Clandestine Removal of Goods Without Payment of Central Excise Duty:
The case revolves around M/s P & J Aromatics allegedly evading Central Excise duty on their Jeet & Andaaz brand Gutkha by clandestinely removing goods without payment of duty. The Revenue's case was based on investigations and statements from various individuals associated with the transportation and storage of the goods. However, during cross-examinations, key witnesses from M/s Bharat Freight Carrier (BFC) denied transporting Gutkha under the guise of Pashu Ahaar. The Tribunal found no substantial evidence to support the Revenue's claim that M/s P & J Aromatics manufactured and cleared 40553 bags of Gutkha without paying duty. The Tribunal held that the Revenue could not establish the clandestine removal of goods based on the information provided by the Railway Authorities.

2. Confiscation of Goods and Raw Materials:
The Original Authority ordered the confiscation of various quantities of Jeet and Andaaz brand Gutkha and related packaging materials under Rule 25 of the Central Excise Rules, 2002. The Tribunal, however, found that Rule 25 does not authorize the confiscation of raw materials. Consequently, the Tribunal set aside the confiscation orders related to raw materials.

3. Demand of Central Excise Duty and Penalties:
The Original Authority confirmed a demand of ?13,06,19,045/- for the alleged clandestine removal of 49956 bags of finished goods. Additionally, penalties were imposed on M/s P & J Aromatics and its representatives, Shri Praveen Kumar Singhal and Shri Yogendra Kumar Singhal. The Tribunal, however, found that the Revenue could not substantiate the demand with adequate evidence. Consequently, the Tribunal set aside the demand for ?13,06,19,045/-, the penalties of ?13,06,19,045/- on M/s P & J Aromatics, ?50 lakh on Shri Praveen Kumar Singhal, and ?20 lakh on Shri Yogendra Kumar Singhal.

4. Validity of Statements and Cross-Examinations:
The appellants argued that the statements recorded during the investigation were taken under duress and were retracted during cross-examination. The Original Authority had relied on these initial statements despite the retractions. The Tribunal noted that the cross-examinations revealed inconsistencies and threats during the initial statement recordings, thereby diminishing their evidentiary value. The Tribunal found the appellants' arguments compelling and held that the statements could not be solely relied upon to substantiate the Revenue's claims.

5. Authority to Confiscate Raw Materials Under Rule 25 of Central Excise Rules, 2002:
The Tribunal clarified that Rule 25 of the Central Excise Rules, 2002, does not authorize the confiscation of raw materials. Consequently, the Tribunal set aside the confiscation orders related to raw materials including 31.6kg and 1282.4kg of Jeet brand lamination, Jeet brand lamination and outer valued at ?7,61,875/-, HDPE outer valued at ?9,600/-, and 6417kgs of Jeet brand lamination & outer valued at ?8,39,500/-.

Conclusion:
The Tribunal partially allowed Appeal No. 388 of 2008 and fully allowed Appeal Nos. 389 & 390, providing consequential relief to the appellants as per law. The Tribunal's decision emphasized the need for substantial evidence to support allegations of clandestine removal and highlighted the limitations of Rule 25 in authorizing the confiscation of raw materials.

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