2017 (5) TMI 142 - AT - Central Excise

Clandestine removal - penalty - The main contention of the Ld. A.R. of the Revenue is that Shri Sanjay Khaitan, Director of the respondent Co., in his statement admitted the clandestine removal of the goods - It is further contended that the retraction of the statements nothing but an afterthought and is not acceptable - Held that - Apparently, the investigation officers, had proceeded on the basis of the statement recorded at the time of visit. Subsequently, the statement was retracted - In any event, there is no material on record of further investigation of the case. Revenue has not placed any positive evidence before the Tribunal except the statement of the Director which was subsequently retracted - appeal dismissed - decided against Revenue.

Summary

Issues:
- Appeal against Commissioner (Appeals) order
- Alleged clandestine removal of goods and imposition of penalty
- Reliance on paper slips as evidence
- Availment of cenvat credit

Analysis:
The appeal was filed by the Revenue against the order of the Commissioner (Appeals) which rejected the Revenue's appeal and upheld the Adjudication order. The case involved allegations of clandestine removal of goods and imposition of penalty based on a search conducted at the respondent's factory where records were seized, and statements were recorded. The main contention was that the Director of the respondent company had initially admitted to the clandestine removal of goods, but later retracted the statement. The Adjudicating Authority observed that the entries in the paper slips were insufficient to prove the charges of clandestine removal, as there was a lack of evidence showing the goods were removed from the factory premises without proper documentation. Additionally, it was noted that the raw materials were received from a supplier exempted from Central Excise duty, and the cenvat credit was legally availed by the respondent.

During the denovo adjudication, it was highlighted that the evidence provided by the Revenue, such as paper slips indicating transportation of goods, lacked further investigation or corroboration. The investigation officers relied on the initial statement without conducting a thorough follow-up investigation after the retraction. The absence of concrete evidence beyond the retracted statement led to the conclusion that the respondent could not be held responsible for clandestine removal. The Tribunal concurred with the findings of the lower authorities and dismissed the Revenue's appeal, emphasizing the lack of substantial evidence to support the allegations.

In summary, the judgment focused on the insufficiency of evidence to prove clandestine removal of goods, the legal availment of cenvat credit, and the lack of thorough investigation beyond initial statements. The decision highlighted the importance of corroborative evidence and proper investigation in establishing liability in excise duty cases, ultimately leading to the dismissal of the Revenue's appeal.