2018 (7) TMI 326 - AT - Central Excise

Clandestine removal - MS Ingots - third party evidences - entire case of the department is based upon the entries in the diary recovered from one Mr. S.K. Pansari (proprietor of M/s Monu Steels) and also on the statement of the said Mr. S.K. Pansari - no corroborative evidence - penalty u/r 26 - Held that - In the impugned order nowhere it has been discussed as to how the demand of duty is sustainable in the absence of any clinching evidence of clandestine manufacture and removal of the goods. The entire demand is based upon the records recovered from Sh. S.K. Pansari proprietor of M/s Monu Steel. There is no evidence expect the said statement and private dairy entry of 3rd party i.e. of Sh. S.K. Pansari which contains the name of the appellant. The law as to whether the third party records can be adopted as an evidence for arriving at the findings of clandestine removal, in the absence on any corroborative evidence, is well settled. Only on the basis of statement of third party no demand can be made. Recently, this tribunal in the case of Arora (CG) Energy & Steel P. Ltd., Vs. CCE & ST Raipur 2018 (6) TMI 1484 - CESTAT NEW DELHI has set aside the demand since the entire case of the Revenue is based upon the entries made in the records of M/s. Monu Steel without there being any corroborative evidence. The penalty imposed on Sh.Sapan Khetan, Director is also set aside. Appeal allowed - decided in favor of appellant.

Summary

Issues:
- Confirmation of demand of Central Excise Duty for clandestine removal of goods
- Reliance on third-party diary entries as evidence without corroborative evidence
- Interpretation of statements made by the appellant
- Legal precedent regarding findings of clandestine removal based on third-party documents
- Justifiability of demand in absence of clinching evidence

Analysis:
1. The judgment revolves around the confirmation of the demand of Central Excise Duty for clandestine removal of goods by the Principal Commissioner, along with penalties, based on the entries in a diary recovered from a third party and statements made by individuals involved.

2. The appellant's counsel argued that the department's case solely relied on the diary entries and statements of a third party without any corroborative evidence. The Commissioner's findings were reiterated by the Department's representative, emphasizing the acknowledgment of clearance by the appellant's director, which the appellant disputed.

3. The appellant's director, in his statement, denied the clearance of goods without proper documentation or duty payment, contradicting the Commissioner's interpretation of his statements. The Commissioner's conclusion was based on a misinterpretation of the director's acknowledgment, leading to a lack of substantial evidence against the appellant.

4. The Tribunal highlighted the necessity of corroborative evidence in cases of clandestine removal, emphasizing that findings cannot be solely based on third-party documents. Legal precedents from various cases were cited to support this stance, emphasizing the need for clinching evidence to uphold demands related to clandestine activities.

5. Previous tribunal decisions were referenced to illustrate instances where demands were set aside due to insufficient corroborative evidence, similar to the present case. The consistent application of legal principles regarding the reliance on third-party records without additional evidence was crucial in overturning the demand and associated penalties.

6. Ultimately, the Tribunal allowed the appeals, setting aside the impugned order and penalties imposed on the appellant's director. The decision was grounded in the lack of substantial evidence beyond third-party diary entries and statements, highlighting the importance of corroborative evidence in establishing demands related to clandestine activities.