2018 (2) TMI 812 - AT - Central Excise

Clandestine removal - allegation is that unaccounted raw materials, i.e. MS ingots were received by the respondent from DSML - Held that - the main documentary evidence in this case is the loose sheets recovered from the respondent factory and hard disc recovered from the computer installed in the premises of DSML. According to department, the Director of respondent company Shri Ashok Bohra has identified the handwriting of the loose sheets is that of Christopher. But the department thereafter has not chosen to record any statement of Christopher. No reason is seen stated for not recording his statement. The allegation is that unaccounted raw materials, i.e. MS ingots were received by the respondent from DSML. However, no documents have been unearthed from the premises of the respondent to show such unaccounted receipt of raw materials or unaccounted manufacture and clandestine clearance of finished products. The use of the electricity consumption or the accounts of finished products manufactured during the relevant period as recorded in the registers do not show any discrepancy. So also there is no evidence to support the transportation of unaccounted receipt of raw materials or the unaccounted / clandestine clearance of finished products. The main evidence which is the computer printout taken from the hard disc of the computer of DSML also does not relate to the accounts of the respondent. The department has no case that these in any manner deal with the accounts/ registers maintained by respondent. Demand set aside - appeal dismissed - decided against Revenue.

Summary

Issues:
Appeal against order setting aside demand, interest, and penalties based on alleged clandestine clearance of goods; Reliability of documentary evidence and witness statements; Corroboration of evidence from multiple sources; Allegations of unaccounted raw material receipt and manufacture.

Analysis:
The case involved an appeal by the Revenue against an order setting aside a demand for duty, interest, and penalties related to alleged clandestine clearance of goods by the respondent. The investigation stemmed from search operations at the respondent's premises and a nearby factory, leading to the recovery of incriminating documents and statements from key individuals. The Revenue contended that the loose sheets recovered from the respondent's factory, along with computer printouts from the nearby factory, provided substantial evidence of clandestine activities. The Commissioner (Appeals) had set aside the demand, citing issues with the evidence's reliability and corroboration.

The Revenue argued that the loose sheets and computer printouts, along with witness statements, formed a strong case against the respondent. They emphasized the admission of unaccounted raw material receipt by the respondent's director and the lack of need for further statements from key individuals. The Revenue maintained that the evidence, including documents from the nearby factory, sufficiently proved the clandestine clearance of goods. They criticized the Commissioner (Appeals) for disregarding the corroborative nature of the evidence and alleged violations of natural justice.

On the respondent's side, it was contended that the allegations were based on presumptions and coerced statements. They highlighted contradictions in the witness statements and raised doubts about the authenticity of the recovered documents. The respondent argued that the evidence, including third-party documents, lacked direct linkage to their operations. They pointed out discrepancies in the timelines of document recovery and questioned the reliability of the computer printouts. The respondent asserted that the Commissioner (Appeals) rightly set aside the demand, interest, and penalties due to the lack of concrete evidence against them.

After considering the arguments from both sides, the Tribunal upheld the Commissioner (Appeals) decision to set aside the demand, interest, and penalties. The Tribunal found no flaws in the Commissioner's assessment of the evidence and concluded that the Revenue's case lacked sufficient proof to substantiate the allegations of clandestine activities. The appeal by the Revenue was dismissed, and the cross-objection by the respondent was disposed of accordingly.