2017 (10) TMI 494 - AT - Central Excise

Clandestine manufacture and removal - toothbrushes - average consumption of input that is bristles - appellant has purchased and consumed large quantity of filament yarn than what was required in the manufacture of tooth brushes as recorded in their account of production suggesting in the suppression of the actual quantity of brushes manufactured by them - Held that - There is no any evidence has been brought on record to allege how the goods have been manufactured by the appellant and how much quantity of which type of brushes has been manufactured by the appellant and what is consumption thereof. Moreover, no evidence has been brought on record how the goods were cleared clandestinely. The case has been made out only on the basis of average uses of input and the statement of the appellants - similar issue came up before Tribunal in the case of M/s Davinder Sandhu Impex Ltd. Shri Baldev Singh, Director Versus Commissoner of Central Excise, Ludhiana 2016 (1) TMI 104 - CESTAT NEW DELHI , where it was held that the charge of clandestine removal is not sustainable merely on the basis of average consumption of inputs and inculpatory statement of the appellant. Revenue has failed to come with any positive evidence on record to allege clandestine removal of goods - the charge of clandestine removal of goods is not sustainable - appeal allowed - decided in favor of appellant.

Issues Involved:
1. Allegation of clandestine removal of goods.
2. Basis of demand on average consumption of inputs.
3. Reliability of inculpatory statements.
4. Absence of corroborative evidence.

Detailed Analysis:

1. Allegation of Clandestine Removal of Goods:
The appellants were accused of clandestine removal of goods, specifically tooth brushes, based on an investigation by the Anti Evasion Department. The key contention was that the appellants had purchased and consumed more filament yarn than required, suggesting unrecorded production and clandestine clearance. The demand for duty amounting to ?19,62,871/- was confirmed, and penalties were imposed.

2. Basis of Demand on Average Consumption of Inputs:
The demand was based on the average weight of bristles used in tooth brushes, calculated during a factory visit. The average weight per brush was determined to be 1.15 gm. The authorities alleged that the actual production was not recorded in statutory records, leading to the issuance of a show cause notice. However, the appellants argued that the charge was based on standard input-output norms, which are not applicable for alleging clandestine removal. They contended that the average metal used in manufacturing various types of brushes was considered without actual ascertainment of input usage.

3. Reliability of Inculpatory Statements:
The appellant's counsel argued that the inculpatory statements made by the appellant were not reliable in the absence of positive evidence. The case of Davinder Sandhu Impex Ltd. v. CCE, Ludhiana was cited, where it was held that statements recorded under duress and without corroborative evidence could not substantiate charges of clandestine removal.

4. Absence of Corroborative Evidence:
The tribunal found that no evidence was presented to show how the goods were manufactured, the quantity of each type of brush produced, or how the goods were cleared clandestinely. The case was made solely on average input usage and the appellant's statements. Citing precedents, the tribunal emphasized that charges of clandestine removal must be supported by concrete and positive evidence, such as excessive raw material purchase, finished goods shortage, excess power consumption, seizure of cash, or transportation records.

Conclusion:
The tribunal concluded that the charge of clandestine removal was not sustainable merely on the basis of average consumption of inputs and inculpatory statements. The absence of corroborative evidence such as consumption of electricity, additional packing material, payment records for clandestine removal, and transportation details led to the setting aside of the impugned order. The appeals were allowed with consequential relief.

Judgment:
The tribunal allowed the appeals, setting aside the impugned order, and granted consequential relief to the appellants. The judgment was pronounced in court.

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