2018 (7) TMI 320 - AT - Central Excise

Clandestine removal - no evidence produced by Revenue to establish the charge - penalty - Held that - The department has not subsequently brought out any evidence regarding method and mode adopted by it for physical stock taking of the subject goods available in the factory of the appellants. Since the department has solely relied upon the submissions to arrive at the conclusion, that there was shortage of the impugned goods in the factory, averment made therein cannot be legally sustained for initiation of proceedings against the appellant for raising the demand and for imposition of penalty. The department has not brought out any tangible evidence to prove that the appellants had the intention to remove goods in clandestine manner. No doubt that the investigation conducted do suggest a strong suspicion about clandestine activities but a suspicion howsoever grave cannot take the place of proof of clandestine clearance like seizure of clandestinely removed goods, seizure of cash admitted by the concerned persons to be sale proceeds of the illicitly removed goods, excess procurement of raw materials, excess power utilization, confirmation by some of the transporters and recipients to indicate that such clandestine cleared goods have been transported/received by them. In the absence of any of these positive evidences and non-extending the opportunity of cross-examination the case of clandestine clearances of Iron and Steel products by the appellants is not established - demand do not sustain. Penalty - Held that - Once on merit the case has been decided in favour of the appellants, then penalties cannot be imposed upon them under the various provisions of Central Excise Act, 1944 and the rules made thereunder - penalties set aside. Appeal allowed - decided in favor of appellant.

Issues:
1. Alleged clandestine clearance of manufactured goods and duty demand.
2. Imposition of penalty on the appellant firm and its partner.
3. Alleged removal of goods without payment of duty and penalty imposition.
4. Stock shortage discrepancies and evidence for initiation of proceedings.

Analysis:

Issue 1: Alleged clandestine clearance of manufactured goods and duty demand
The case involved the appellant, engaged in the manufacture of specific goods, facing allegations of clandestine clearance of finished excisable goods. The Adjudicating Authority confirmed the duty demand with interest and imposed penalties on the appellant and its partner. The Commissioner (Appeals) upheld the adjudication order, leading to the present appeal. The appellant argued against the duty liability determination based on presumptions and assumptions, emphasizing the lack of tangible evidence to support the allegations of clandestine removal. The appellant contended that the burden of proving clandestine activities rested with the Revenue, requiring substantial and tangible evidence, such as purchase records, electricity usage, and sales details, which were lacking in this case.

Issue 2: Imposition of penalty on the appellant firm and its partner
The appellant challenged the penalties imposed alongside the duty demand, arguing that without concrete evidence of clandestine activities, penalties should not be levied. The appellant's counsel highlighted that penalties cannot be imposed if the case is decided in favor of the appellants on the merits. The Tribunal noted that in the absence of corroborating evidence and further investigations, every case of stock shortage cannot be presumed as clandestine removal, emphasizing the need for substantial proof before penalizing the appellants.

Issue 3: Alleged removal of goods without payment of duty and penalty imposition
The second appeal involved allegations of goods removal without duty payment, leading to penalties on the appellant company and its Director. Similar to the first issue, the appellant contested the duty demand and penalties based on the lack of concrete evidence supporting the allegations. The Tribunal observed that the department failed to provide substantial evidence regarding the method of physical stock taking and the intention of the appellants to remove goods clandestinely. Without tangible proof, the charges of clandestine removal and duty demand were deemed unsustainable, resulting in the appeals being allowed in favor of the appellants.

Issue 4: Stock shortage discrepancies and evidence for initiation of proceedings
The Tribunal scrutinized the stock shortage discrepancies and the evidence presented by the department to initiate proceedings against the appellants. It was noted that the department heavily relied on submissions without substantial evidence regarding stock verification methods and the intention of the appellants. The Tribunal emphasized the importance of tangible proof, such as actual weighment basis for stock verification and the absence of additional raw material procurement or power consumption to support the allegations of clandestine activities. Ultimately, the lack of concrete evidence led to the rejection of the charges and penalties imposed on the appellants.

In conclusion, the Tribunal set aside the impugned order, allowing the appeals in favor of the appellants, highlighting the necessity of substantial evidence and proof before confirming allegations of clandestine activities and imposing penalties.

← Previous Next →