2018 (10) TMI 20 - HC - Central Excise

Clandestine removal - substantial question of law - demand on the basis of assumptions and presumptions - Held that - No substantial question of law arises under Sec. 35-G of the Central Excise Act - The findings of fact recorded by the learned Tribunal appear to be in order, based on relevant evidence and the Tribunal has rightly held that the additional excise duty could not be imposed merely on account of assumptions and presumptions of the assessing authority of the clandestine removal of the dutiable goods under the 20 invoices - appeal dismissed - decided against Revenue.

Summary

Issues involved:
Appeal against CESTAT order raising questions of law regarding investigation into fraud and evasion, consideration of consistency in statements, conclusive nature of retractions, and post-retraction statements. CESTAT findings setting aside Order-in-Original due to lack of clear evidence, voluntary statements, and reliance on assumptions and presumptions. High Court's assessment of substantial question of law under Sec. 35-G of Central Excise Act based on evidence and finding no merit in Revenue's appeal.

Analysis:

Investigation into Fraud and Evasion:
The appeal raised questions regarding the adequacy of investigation into fraud and evasion. The CESTAT found that suspicion, even if well-founded, cannot replace clear evidence, especially when substantial duty liability is at stake. The Department's case relied on statements from individuals that were immediately retracted, indicating lack of voluntariness. The absence of concrete evidence from customers regarding the alleged evasion led the CESTAT to question the Department's reliance on assumptions and presumptions. The High Court concurred with the CESTAT's view that the Department failed to conduct a proper investigation into fraud and evasion, leading to the setting aside of the Order-in-Original.

Consistency in Statements and Retractions:
The questions raised also pertained to the consistency in statements and the weight to be given to retractions. The CESTAT highlighted that statements, which were retracted immediately, cannot be deemed voluntary. The High Court noted that the retracted statements of the individuals lacked supporting incriminating material, undermining the Department's case of clandestine removal of goods. The lack of consistency and voluntary nature of the statements played a crucial role in the decision to set aside the original order.

Substantial Question of Law and Evidence:
The High Court assessed the appeal under Sec. 35-G of the Central Excise Act, emphasizing the importance of substantial questions of law. It determined that the findings of fact by the Tribunal were based on relevant evidence, and there was no merit in imposing additional excise duty based solely on assumptions and presumptions. The Court agreed with the Tribunal's conclusion that the Revenue authorities lacked incriminating material to support the allegation of clandestine removal of goods. Consequently, the High Court dismissed the Revenue's appeal, affirming the Tribunal's decision.

In conclusion, the judgment delves into the issues of investigation adequacy, statement consistency, voluntariness, reliance on evidence, and substantial questions of law. The decision underscores the significance of concrete evidence in establishing fraud and evasion, highlighting the need for voluntary and consistent statements to support allegations. The High Court's meticulous analysis upholds the Tribunal's decision, emphasizing the importance of factual findings and evidence in legal proceedings related to excise duty matters.