2018 (5) TMI 549 - AT - Central Excise

Clandestine removal - demand based on documents recovered from third party - Held that - the law is well settled that the Department is required to adduce clinching evidence of the nature of purchase of raw material, use of electricity, sale of final products, payment, realization of sale proceeds, mode and flow back of funds etc. - In the present case, no tangible evidences were produced by the Department to support the case that the goods were clandestinely removed from the factory. In absence of any corroborative evidence produced by the Department, substantiating clandestine removal of goods, the charges cannot be levelled against the appellants for confirmation of the duty demand and for imposition of penalties. Demand do not sustain - appeal allowed - decided in favor of appellant.

Summary

Issues: Allegations of clandestine removal of goods without payment of duty.

Analysis:
The case involved allegations of clandestine removal of goods without payment of duty against the appellant, a manufacturing company. The Department initiated show cause proceedings which resulted in an adjudication order confirming Central Excise Duty demand, interest, and penalties on the main appellant and other related parties. The appellants challenged the adjudication order before the ld. Commissioner (Appeals) and subsequently filed appeals before the Tribunal against the impugned orders.

The ld. Advocates for the appellants argued that the Department lacked corroborative evidence to support the confirmed demand. They contended that no investigations were conducted at the supplier's end to verify the procurement of raw materials for the alleged clandestine removal of goods. Additionally, they highlighted that transporters did not confirm transporting goods without payment of Central Excise Duty. The appellants relied on legal precedents, including a judgment of the Hon'ble Allahabad High Court and decisions of the Tribunal, to support their arguments.

On the other hand, the ld. D.R. for the respondent reiterated the findings of the impugned order, supporting the Department's position.

Upon hearing both sides and examining the appeal records, the Member (Judicial) found that the Department primarily relied on data retrieved from a third party's premises to allege clandestine removal of goods by the appellants. The Member emphasized that for such allegations, the Department must provide concrete evidence regarding various aspects of the transaction chain, including procurement of raw materials, production, sale, payment, and fund flow. In this case, the Department failed to produce tangible evidence supporting the clandestine removal allegations. The Member noted that transporters' statements did not specifically implicate the appellants, and no investigations were conducted at the customer's end to verify the alleged transactions. Citing a previous Tribunal order in a related case, the Member concluded that without sufficient corroborative evidence, the charges against the appellants could not be upheld. The Member also referenced the Tribunal's decision in a similar case involving the appellants, where the impugned order was set aside.

Ultimately, the Member found no merit in the impugned orders and allowed the appeals in favor of the appellants, setting aside the confirmed duty demand and penalties imposed on them.

This detailed analysis highlights the legal intricacies and evidentiary requirements in cases involving allegations of clandestine removal of goods, emphasizing the need for concrete and corroborative evidence to substantiate such claims.