2017 (9) TMI 1480 - AT - Central Excise

Clandestine removal - burden of proof - Held that - It is well settled law that the charge of clandestine removal, the burden lies on the department - the clandestine activities cannot be established on the basis of theoretical input-output ratio, without tangible and positive evidence. The respondent had given explanation before the Commissioner (Appeals) for such alleged different of input-output ratio. They have also submitted the process flow chart to justify the various losses - appeal dismissed - decided against Revenue.

Summary

Issues:
Clandestine removal of goods, disproportionate consumption of raw materials, demand of duty, imposition of penalty, appeal against Adjudication order.

Analysis:
The case involved the manufacturing of printed and laminated plastic rolls and pouches classifiable under Chapter 39 of the Central Excise Tariff Act, 1985. The audit revealed a discrepancy between raw material consumption and finished goods yield, leading to the issuance of two Show Cause Notices proposing duty demand, interest, and penalty for alleged clandestine removal of goods. The Adjudicating Authority confirmed the duty demand and imposed a penalty equal to the duty amount. However, the Commissioner (Appeals) set aside the Adjudication order, prompting the revenue to file an appeal challenging this decision.

During the hearing, the revenue argued that the respondents failed to provide evidence supporting the higher consumption of ink and admitted to clandestine clearance by paying a calculated amount. The Commissioner (Appeals) noted that the respondents did not file a refund claim within the stipulated time, rendering the amount non-refundable. The entire demand was based on theoretical raw material consumption and finished goods production, lacking concrete evidence.

The Tribunal emphasized that in cases of clandestine removal, the burden of proof rests with the department, and mere theoretical input-output ratios are insufficient without tangible evidence. Citing precedents, the Commissioner (Appeals) highlighted the need for positive proof in establishing clandestine activities.

The revenue referred to a decision by the Punjab and Haryana High Court, which led to the matter being remanded to the Tribunal. In the current case, the respondents provided explanations to the Commissioner (Appeals) regarding the alleged discrepancy in input-output ratios and submitted a process flow chart to justify losses.

Ultimately, the Tribunal found no grounds to interfere with the Commissioner (Appeals)'s order, rejecting the revenue's appeal and disposing of the cross objection. The decision was based on the lack of concrete evidence supporting the duty demand and the theoretical nature of the allegations without substantial proof.