2018 (1) TMI 370 - AT - Central Excise

Clandestine removal - Sponge iron - credibility of the documentary evidence on which demand was raised - Held that - the Department could not adduce any evidence to establish the clandestine removal of goods without payment of duty. There is no dispute that the assessee admitted the clearance of the goods - the imposition of penalty under Section 11AC of the Central Excise Act on the appellant company is justified. Penalty on Director - Held that - the Director of the assessee company had admitted the clearance of the goods and paid the duty. There is no material available on record that the Director of the assessee company was involved in such clandestine removal of the goods - penalty set aside. Appeal allowed in part.

Summary

Issues:
1. Clandestine clearance of goods without payment of duty.
2. Imposition of penalty on the assessee and its Director.
3. Dispute regarding evidence and place of seizure of documents.
4. Admittance of clearance of goods and payment of duty by the assessee and its Director.

Analysis:
1. The case involved two appeals related to clandestine clearance of goods without payment of duty by two different assessees. In the first appeal, the Central Excise Officers found documents indicating the clearance of Sponge Iron without duty payment by the Assessee. The Director of the Assessee admitted to the clearance and paid the duty. The Adjudicating authority confirmed the duty demand and imposed penalties, which were later set aside by the Commissioner (Appeals) due to lack of evidence of clandestine removal. However, the Tribunal disagreed, stating that the chart of Cash Sales was primary evidence for clandestine removal, justifying the penalty under Section 11AC of the Central Excise Act. The penalty on the Director was set aside as there was no evidence of his involvement in the removal.

2. In the second appeal, a similar scenario occurred with the clearance of M.S. Billet without duty payment by another Assessee. The Director admitted to the clearance and paid the duty. The Adjudicating authority confirmed the duty demand and imposed penalties, which were set aside by the Commissioner (Appeals) due to lack of further investigation and evidence of clandestine removal. The Tribunal, however, justified the penalty on the appellant company under Section 11AC, as the clearance was admitted and duty paid. The penalty on the Director was set aside due to lack of evidence of his involvement.

3. The Commissioner (Appeals) in both cases set aside penalties due to lack of evidence of clandestine removal and the involvement of the Directors. However, the Tribunal disagreed, emphasizing the admission of clearance and duty payment by the assessees and their Directors as crucial factors. The Tribunal upheld the penalties on the appellant companies but set aside the penalties on the Directors as there was no material evidence of their involvement in the clandestine removal.

4. Ultimately, the appeals filed by the Revenue against both assessees were allowed, subject to the assessees' option to pay the penalty at 25% of duty along with the full amount of duty and interest within 30 days. The appeals against the other respondents were dismissed, and cross objections were disposed of accordingly.