2017 (11) TMI 934 - AT - Central Excise

Clandestine removal - shortage of goods - Held that - in the initial proceedings before the Commissioner (Appeals) it has been held that there is no positive evidence of clandestine removal. Moreover, it is not the case of clandestine removal, therefore, charge of clandestine removal is not sustainable against the appellant. As the demand sought to confirm on the basis of shortage found as per panchnama drawn during the course of investigation, the said panchnama has been held not admissible, in that circumstance, the show cause notice issued to the appellant is not sustainable. Appeal allowed - decided in favor of appellant.

Issues:
1. Remand proceedings after observations made by Tribunal in earlier round of litigation.
2. Allegations of clandestine removal based on shortage of raw materials and finished goods.
3. Challenge to method of stock taking and valuation of goods.
4. Confirmation of demand, interest, and penalties by adjudicating authority.
5. Reduction of penalty by Commissioner (Appeals) due to lack of positive evidence of clandestine removal.
6. Reduction of duty, interest, and penalty in remand proceedings.
7. Admissibility of affidavits filed by panch witnesses.
8. Sustainability of show cause notice and proceedings against the appellant.

Analysis:
1. The Tribunal noted that in the previous round of litigation, observations were made regarding the appellant's defense against the calculation of shortage and valuation of goods. The matter was remanded back to the adjudicating authority for de novo adjudication.

2. The case involved allegations of clandestine removal based on the shortage of raw materials and finished goods found during a search conducted at the appellant's premises. The appellant challenged the method of stock taking and the valuation of goods.

3. Despite the appellant's challenges, the adjudicating authority confirmed the demand, imposed interest, and penalties. The Commissioner (Appeals) confirmed the demand but reduced the penalty due to the lack of positive evidence of clandestine removal.

4. Subsequently, in the remand proceedings, the duty was reduced, and interest and penalty were restricted. The appellant appealed again, claiming that without challenging the previous order that found no positive evidence of clandestine removal, the charge was not sustainable.

5. The appellant argued that the stock taking was done on an eye estimation basis, and the panch witnesses' affidavits supported discrepancies in the process. The authorities rejected the affidavits as an afterthought.

6. After hearing both parties, the Tribunal found that there was no positive evidence of clandestine removal and that the charge was not sustainable. The panch witnesses' affidavits were considered admissible evidence, and since no positive evidence was presented to refute them, the show cause notice was deemed unsustainable.

7. The Tribunal concluded that the panchnama drawn during the investigation had no evidentiary value, and the proceedings against the appellant were not sustainable. Therefore, the impugned order was set aside, and the appeal was allowed with any consequential relief.

This detailed analysis covers the issues raised in the legal judgment comprehensively, addressing each aspect of the case and the Tribunal's findings in a structured manner.

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