2017 (3) TMI 609 - AT - Central Excise

Clandestine removal - evidence - Held that - there is sufficient evidence on record to show that the appellant was clearing their final product without payment of duty under the cover of parallel invoices. The statement of Shri O P Sabharwal as also of another supervisor read with the statement of the proprietor of M/s. Asha Trading Co. do not stand agitated by the appellant and lead to the clear evidence that the appellant was indulging in clandestine activities - such parallel invoices were also recovered from the factory during the time of search. If that be so, the parallel invoices so recovered would provide the basis for the extent of evasion made by the appellant - the adjudicating authority needs to examine the entire evidence given and to arrive at the total clandestine clearance figures - appeal allowed by way of remand.

Summary

Issues:
1. Allegations of evasion of Central Excise duty through parallel invoices.
2. Application of statements of involved parties in determining duty evasion.
3. Discrepancy in calculating the extent of duty evasion.
4. Appeal against the order of the original adjudicating authority.
5. Appeal by the Revenue regarding the extent of confirmed demand.
6. Decision of the appellate authority and subsequent appeal by the appellant.

Analysis:
1. The case involved allegations of evasion of Central Excise duty by issuing parallel invoices for clearances of excisable goods without payment. The appellant was found to be engaged in clandestine activities related to the clearance of goods without duty payment under the cover of such parallel invoices.

2. The statements of key individuals, including the proprietor of the appellant firm and the buyer from M/s Asha Trading Co., were crucial in establishing the evasion. The admission by the appellant's proprietor regarding unaccounted clearances and the buyer's statement on purchases with and without invoices were significant pieces of evidence.

3. A discrepancy arose in determining the extent of duty evasion. The appellant argued that the demand should be limited to clearances made to M/s Asha Trading Co., while the Revenue contended that the demand should cover all admitted clearances under parallel invoices. This discrepancy led to the appeal against the original adjudicating authority's order.

4. Both the appellant and the Revenue appealed against the original adjudicating authority's order. The appellant challenged the confirmation of duty demand based on assumptions, while the Revenue sought confirmation of demand for the entire amount of unaccounted clearances as per the proprietor's admission.

5. The appellate authority rejected the appellant's appeal and allowed the Revenue's appeal by enhancing the confirmed demand, leading to the appellant filing the present appeal. The decision was based on the evidence of parallel invoices recovered during the search and the admissions made by involved parties.

6. Upon hearing both sides, the Member (Judicial) found that while there was evidence of evasion, the calculation of the extent of evasion needed further examination. The appellate authority's decision was set aside, and the matter was remanded to the original adjudicating authority for a fresh decision based on a comprehensive review of all evidence to determine the total clandestine clearance figures accurately. The appeal was disposed of accordingly.