2018 (9) TMI 571 - HC - Central Excise

Clandestine removal - Whether the Tribunal substantially erred in law in not accepting the case of the revenue about clandestine removal of goods in the guise of waste even when the Manager/Authorized Signatory had admitted the offence in his statement recorded under Section 14 of the Central Excise Act, 1944 and even when the statement was not retracted? Held that - Primarily two authorities have concurrently held that the assessee s stand of fire breaking out in its units was duly established. This led to higher wastage than average. The customers had admitted having received goods and made payments through cheques. Demand cannot sustain - appeal dismissed - decided against Revenue.

Summary

Issues:
1. Whether the Tribunal erred in law by not accepting the revenue's case of clandestine removal of goods?
2. Whether the evidence presented by the assessee sufficiently refutes the allegations of clandestine removal of goods?

Issue 1: Tribunal's acceptance of revenue's case

The department appealed against the CESTAT judgment regarding alleged clandestine removal of goods by the assessee. The department contended that the manager/admitted signatory had confessed to the offense under Section 14 of the Central Excise Act, 1944, and the statement was not retracted. The respondent, a manufacturer of crimped texturised yarn, was accused of clandestinely removing goods under the guise of waste, with discrepancies noted during a departmental visit in 1996. Statements were recorded from the authorized signatory admitting excess production, but later, the company director disagreed with the admissions. Despite a show cause notice and subsequent adjudication confirming duty and penalty demands, the Commissioner (Appeals) accepted the assessee's explanations, finding no evidence of clandestine removal. The Tribunal upheld this decision, emphasizing the evidence provided by the assessee, including customer acknowledgments, invoice corroboration, and evidence of accidental fire leading to excess wastage.

Issue 2: Adequacy of evidence presented by the assessee

The Commissioner's detailed order highlighted discrepancies explained by the assessee during investigations, supported by customer confirmations of goods receipt and payments through proper channels. The Tribunal reaffirmed these findings, emphasizing the establishment of fire incidents causing higher wastage, as evidenced by the fire brigade's involvement, press reports, and police notifications. The Tribunal concurred with the Commissioner's assessment that the evidence demonstrated a direct correlation between the alleged wastage and the documented accounts. The Tribunal's decision to dismiss the department's appeal was based on the consistent findings of both authorities regarding the substantiation of the fire incidents, the absence of clandestine removal evidence, and the satisfactory explanations provided by the assessee.

In conclusion, the High Court upheld the Tribunal's decision, dismissing the Tax Appeal in favor of the assessee. The judgment underscores the importance of thorough investigations, corroborative evidence, and consistent findings by authorities in determining cases of alleged clandestine activities, emphasizing the significance of documentary proof and witness statements in refuting such claims.