2017 (5) TMI 608 - AT - Central Excise

Clandestine removal - 187MT of TMT bars - entire demand was raised on the basis of records recovered from one steel broker Sri Umesh Modi and his statement recorded under Section 14 - retraction not accepted on the ground that the same was sent by ordinary post which cannot be considered as retraction properly filed therefore the same cannot be accepted - cross examination denied on the ground that there are various evidences available against the appellant therefore cross examination is of no use - Held that - The charge of clandestine removal should be established beyond any doubt on the basis of tangible evidences which adjudicating authority failed to prove - there is no inquiry or investigation carried out in the factory premises of the appellant and no incriminating documents were recovered from the premises of the appellant company. In such a situation whatsoever evidences relied upon by the adjudicating authority for confirmation of demand is not sufficient to hold charge of clandestine removal - department could not establish the case of the clandestine removal against the appellant company - appeal allowed - decided in favor of appellant.

Issues Involved:
1. Clandestine removal of goods without payment of duty.
2. Reliability of evidence including broker’s records and statements.
3. Admissibility and retraction of confessional statements.
4. Denial of cross-examination of witnesses.

Issue-wise Detailed Analysis:

1. Clandestine Removal of Goods Without Payment of Duty:
The department alleged that the appellant cleared 187MT of TMT bars to a broker without paying the required duty, resulting in a demand of ?6,03,857 and an equal penalty. A penalty of ?1,50,000 was also imposed on the director of the appellant company. The charge was based on records seized from the broker and the statements of the broker and the appellant’s director.

2. Reliability of Evidence Including Broker’s Records and Statements:
The adjudicating authority and the Commissioner (Appeals) relied on records recovered from the broker and the statements of the broker and the appellant’s director. The broker’s records indicated various suppliers, but the entry for the appellant was marked as "GA," which did not clearly identify the appellant. The tribunal found that the broker’s records and the subsequent chart prepared by the broker, which linked "GA" to the appellant, were not conclusive evidence. The tribunal noted that the broker’s statement alone, especially without cross-examination, could not be relied upon to establish clandestine removal.

3. Admissibility and Retraction of Confessional Statements:
The appellant’s director initially admitted to the clandestine removal in his statement but later retracted it, claiming it was made under duress. The tribunal emphasized that when a statement is retracted, it is essential for the adjudicating authority to cross-examine the person whose statement is being relied upon, as mandated by Section 9(D) of the Central Excise Act, 1944. The tribunal found that this procedure was not followed, rendering the statement unreliable.

4. Denial of Cross-Examination of Witnesses:
The appellant requested the cross-examination of the broker, which was denied by the adjudicating authority. The tribunal held that the denial of cross-examination was improper, especially when the evidence against the appellant was primarily based on the broker’s statement. The tribunal cited several judgments supporting the necessity of cross-examination to ensure the reliability of statements used as evidence.

Conclusion:
The tribunal concluded that the department failed to establish the charge of clandestine removal beyond doubt. The evidence relied upon by the adjudicating authority was found insufficient and not tangible. The tribunal set aside the impugned order against the appellant company and its director, allowing the appeals.

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