2018 (9) TMI 496 - HC - Central Excise

Clandestine Removal - demand based on documents and information recovered from third party / ex-employee - cross examination - Whether the Customs, Excise and Service Tax Appellate Tribunal was right in rejecting and not taking into consideration computer printouts and holding them as inadmissible for failure to meet the conditions specified in Section 36B of the Central Excise Act? - Whether the decision of the Customs, Excise and Service Tax Appellate Tribunal is contrary to facts and perverse? - Whether the Customs, Excise and Service Tax Appellate Tribunal was right in excluding statement of Janki Sharma and computer printout and in holding that there was no evidence to show clandestine removal? Held that - It is evident that the case built up against the assessee is entirely based on the evidence procured from third party. The lynchpin of the Revenue s case is the statement of Ms. Janki Sharma. Concededly, there was nothing recovered from the premises of assessee connecting it with her-either as an employee or as a consultant. It is not even Revenue s claim that during the course of adjudication, it asked any query from the assessee for directing her to furnish the bank statement etc. to find out possible connection with respect to any payments made or other financial connection with Ms. Janki Sharma. The inference that the Revenue sought to draw a reference to ATM ; the link it sought to make by the statement of Ms. Janki Sharma. There was no scrap of paper or evidence linking the assessee with any allegations levelled against it vis- -vis excess production and clandestine removal. On the other hand, the CESTAT noticed that the assessee s installed capacity was the production of five ton of copper ingots. Apparently, the assessee was able to function only half the month i.e. for about 15 days. The questions of law framed are answered against the Revenue and in favor of the assessee - Appeal dismissed.

Summary

Issues Involved:
1. Admissibility of computer printouts under Section 36B of the Central Excise Act.
2. Whether the decision of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) is contrary to facts and perverse.
3. Exclusion of the statement of Janki Sharma and computer printouts as evidence of clandestine removal.

Issue-wise Detailed Analysis:

1. Admissibility of Computer Printouts:
The first issue was whether the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) was right in rejecting and not taking into consideration computer printouts for failing to meet the conditions specified in Section 36B of the Central Excise Act. The Tribunal found that the computer printouts, although suspicious, were not supported by corroborative evidence. The evidence from the computer printouts recovered from Ms. Janki Sharma’s premises was not sufficient to prove clandestine removal without further tangible and reliable evidence.

2. Decision of CESTAT Contrary to Facts and Perverse:
The second issue was whether the CESTAT’s decision was contrary to facts and perverse. The Tribunal concluded that the duty demanded could not be sustained due to the lack of material seized from the assessee's premises. The calculations regarding production deduced by the Revenue Authorities were deemed fanciful. The Tribunal emphasized the need for corroborative evidence to support the allegations of clandestine removal, which was not provided by the Revenue.

3. Exclusion of Statement of Janki Sharma and Computer Printouts:
The third issue was whether CESTAT was right in excluding the statement of Janki Sharma and computer printouts and holding that there was no evidence of clandestine removal. The Tribunal pointed out that documents recovered from a third party can only be used against the manufacturer if supported by corroborative evidence. The Tribunal found that the Revenue failed to investigate the procurement of raw materials, the buyers of the finished goods, and the transportation of these goods. The Tribunal noted that the evidence provided by the Revenue raised suspicion but was not sufficient to prove the charges of clandestine removal.

The Revenue's case was based entirely on evidence procured from a third party, specifically the statement of Ms. Janki Sharma and electronic evidence. However, no material was recovered from the assessee's premises connecting it with the allegations. The Tribunal found that the Revenue did not undertake proper investigations to establish a link between the assessee and the allegations of clandestine removal and excess production. The Tribunal also noted that the assessee's installed capacity and operational days did not support the allegations made by the Revenue.

Conclusion:
The Court concluded that the CESTAT correctly held that the assessee’s appeal deserved to be allowed. The questions of law framed were answered against the Revenue and in favor of the assessee. Consequently, the appeal was dismissed.