2016 (12) TMI 380 - AT - Central Excise

Demand - Shortage in inputs and finished products - clandestine removal - Held that - The activities of clandestine nature is required to be proved by sufficient positive evidence. However, the facts presented in each individual case are required to be scrutinized and examined independently. The department in this case has relied upon the confessional statement of the Director which is also supported by the mentioned entries in the private records. There is no averment that the statement has been taken under duress. The assessee also does not appear to have asked for cross-examination during the process of adjudication - I find that the Commissioner (Appeals) order setting aside the demand is not proper. The demand is based on evidence which stands admitted by Director based on private records recovered from the assesses factory. There is nothing on record to the effect that statements relied upon have been extracted under duress. The Director also has voluntarily stated that he is satisfied with the manner of stock taking and search. Demand justified - appeal allowed - decided in favor of Revenue.

Issues Involved:
1. Clandestine removal of goods.
2. Admissibility of evidence.
3. Time-barred demand.
4. Calculation errors in demand.

Issue-Wise Detailed Analysis:

1. Clandestine Removal of Goods:
The departmental officers conducted a verification at the assessee's factory on 6.6.2003 and found shortages in raw materials and finished products. The investigation concluded that the assessee cleared inputs and some finished products clandestinely without payment of duty. The Director of the unit admitted to dispatching goods without payment of duty and without cover of invoices. Loose papers, kacha papers, and notebooks recovered during the search contained entries of such clearances. The Director's statement, which was never retracted, admitted the details in the charts prepared by the department as pertaining to clearances without payment of duty. The Commissioner (Appeals) set aside the demands, stating insufficient evidence of clandestine removal. However, the Tribunal found that the confessional statement of the Director, corroborated by entries in private records, constituted sufficient evidence of clandestine removal.

2. Admissibility of Evidence:
The evidence included loose papers, kacha papers, and private notebooks recovered during the search. The Director admitted that these documents contained details of clearances with and without payment of duty. The Tribunal held that the Director's statement, which was specific and inculpatory, was admissible as evidence. The statement was corroborated by entries in private records, some of which matched with sale invoices. The Tribunal cited the Supreme Court decision in CCE Vs. Systems & Components Pvt. Ltd., stating that what is admitted need not be proved. The Tribunal dismissed the assessee's argument that the author of the private documents was not confronted, as the Director's admission sufficed.

3. Time-Barred Demand:
The Commissioner (Appeals) had set aside the demand on the grounds that the case was time-barred. However, the Tribunal found that the evidence of clandestine clearance was uncovered only due to the department's investigation. The Tribunal held that this constituted suppression of facts, justifying the invocation of the extended period of limitation. Therefore, the demand was not time-barred.

4. Calculation Errors in Demand:
The assessee argued that the calculation of demand was improper, as accounted clearances were not deducted from the private notebooks. The Tribunal noted that the Commissioner (Appeals) could have remanded the matter for correction of such errors. However, the Tribunal found that the demand was based on evidence admitted by the Director and that duty was demanded only on clearances not covered by invoices. The Tribunal set aside the order of the Commissioner (Appeals) and allowed the appeal filed by Revenue, reinstating the Order-in-Original.

Conclusion:
The Tribunal concluded that the Commissioner (Appeals) erred in setting aside the demand. The demand was based on evidence, including the Director's confessional statement and entries in private records, indicating clandestine clearances. The Tribunal found no reason to disallow this evidence and held that the demand was not time-barred due to suppression of facts. The Tribunal allowed the appeal filed by Revenue and reinstated the Order-in-Original.

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