2017 (11) TMI 532 - HC - Central Excise

Clandestine removal - corroborative evidences - Summoning of persons - Whether in the facts and circumstances of the case, the CESTAT was correct in law rejecting the evidences recorded/collected in an inquiry conducted under Section 14 of the Central Excise Act, 1944 which is deemed to be judicial proceedings under Sub-Section (3) of Section 14 ibid, within the meaning of Section 193 and Section 128 of the Indian Penal Code, 1860? - Held that - The Tribunal came to the conclusion that most of the witnesses had retracted their statements on the basis that their statements were obtained under duress and coercion. None of these statements were voluntary and the Commissioner had relied upon different versions of their original statements. The Tribunal also observed that after perusing the documentary evidence relied upon by the Commissioner that the transport receipt, goods challans and other documents did not bear acknowledgments of any of the respondents for having received the consignment of tobacco. In the facts of the case, there was no corroborative documentary evidence to substantiate such statements and in the absence of these link documents it was not proper to conclude that there was clandestine clearance of goods. The settled legal position for establishing clandestine clearances is that there had to be a strong body of evidence which the Tribunal found was lacking in the present case. The Tribunal found that the evidence of drivers would have been useful in proving a fact of supply of raw tobacco at a particular destination but the revenue had not recorded the statements of any of the drivers of transporters of raw tobacco. On the date of interception of 90 cartons of raw tobacco, immediate verification carried out of the stock in the respondent s factory did not reveal any shortage or excess and there was no evidence of unaccounted production or clearance - the Tribunal has examined the evidence threadbare and has correctly come to the conclusion that the order of the confiscation of 90 cartons of Jarda and the demand made of Central Excise duty upon the main respondent and imposition of penalty and interest cannot be sustained. Appeal dismissed - decided against Revenue.

Issues Involved:
1. Whether the CESTAT was correct in law in rejecting the evidence recorded/collected in an inquiry conducted under Section 14 of the Central Excise Act, 1944, which is deemed to be "judicial proceedings" under Section 14(3) of the Act, within the meaning of Section 193 and Section 228 of the Indian Penal Code, 1860.

Detailed Analysis:

1. Legal Framework and Provisions:
The court examined Section 14 of the Central Excise Act, 1944, which empowers Central Excise Officers to summon individuals for evidence or document production in inquiries. This section deems such inquiries as "judicial proceedings" under Sections 193 and 228 of the Indian Penal Code (IPC). Section 193 IPC pertains to punishment for false evidence, while Section 228 IPC deals with intentional insult or interruption to public servants during judicial proceedings.

2. Factual Background:
The case involved M/s. R. K. Patel & Co., Tobacco Manufacturers (RKPTM), accused of clandestine removal of branded chewing tobacco (Jarda) without paying central excise duty. The Revenue intercepted a vehicle carrying 90 cartons of Jarda without a central excise invoice. Subsequent investigations revealed unaccounted raw tobacco and other materials, leading to a demand for duty and imposition of penalties.

3. Tribunal's Findings:
The CESTAT allowed the assessee's appeal, noting that the case against the appellant was based on oral statements and circumstantial evidence. The Tribunal observed discrepancies in the statements of witnesses, many of whom retracted their statements, claiming they were obtained under duress.

4. Appellant's Contentions:
The appellant argued that the Tribunal erred in allowing the appeal, emphasizing the high evidentiary value of the statements made by the respondents, despite retractions. The appellant contended that the Tribunal incorrectly rejected evidence recorded during an inquiry deemed to be "judicial proceedings."

5. Court's Observations:
The court found no merit in the appellant's contentions. It noted that the Tribunal had thoroughly examined the evidence and found significant discrepancies and contradictions in the statements of witnesses. Many witnesses retracted their statements, claiming coercion, and the documentary evidence did not support the allegations of unaccounted raw tobacco and clandestine removal.

6. Evaluation of Evidence:
The Tribunal observed that the Commissioner relied heavily on retracted statements without corroborative documentary evidence. The court concurred with the Tribunal's assessment that the evidence presented was insufficient to establish clandestine clearances. The Tribunal also noted that immediate verification of the stock in the respondent's factory did not reveal any discrepancies.

7. Conclusion:
The court upheld the Tribunal's decision, finding that the order of confiscation of 90 cartons of Jarda, the demand for central excise duty, and the imposition of penalties could not be sustained. The court concluded that no substantial question of law arose in the case and dismissed the appeal.

Final Order:
(i) The appeal fails and is dismissed.
(ii) There will be no orders as to costs.

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