2018 (11) TMI 521 - AT - Central Excise

Imposition of personal penalty - existence of trading activity or not? - Held that - In respect of the goods on which demand of around 58 lakhs was confirmed, there is no evidence of manufacture produced by Revenue for leveling of charges of manufacture and duty liability. It is only because after lapse of time such person could not be produced, the said duty was confirmed. The burden of proof was on Revenue to establish that said goods were manufactured by the appellant and such burden was not discharged by Revenue. Appeal allowed - decided in favor of appellant.

Summary

Issues:
- Appeal filed by Revenue against dropping of demand
- Confirmation of demand and imposition of personal penalty
- Trading activity of manufacturer-appellant
- Burden of proof on Revenue
- Decision on appeals

Analysis:
1. The appeals were taken together as they arose from the same impugned Order-In-Original. The Revenue filed one appeal while the manufacturer-appellants and individuals facing personal penalties filed the remaining appeals.

2. A demand of approximately &8377; 10.47 crores was initially raised against a manufacturer-appellant, which was later reduced to around &8377; 9.97 crores by the Original Authority. The Revenue appealed against the dropping of this demand. Additionally, a demand of &8377; 58,15,019 was confirmed by the Original Authority, along with the imposition of personal penalties on other appellants.

3. The manufacturer-appellant was engaged in both manufacturing and trading activities. The Revenue presumed the trading activity as manufacturing and clearances without duty payment. The Counsel for the manufacturer-appellant argued that the trading transactions were duly recorded in their books and annual statements, involving registered traders who filed returns. The evidence produced by the manufacturer-appellant was considered by the Original Authority, following a precedent decision upheld by the Supreme Court.

4. After considering arguments from both sides and reviewing the records, the Tribunal found that for the demand of around 58 lakhs, the Revenue failed to produce evidence of manufacture and duty liability. Due to the inability to produce certain individuals over time, the duty was confirmed without the burden of proof being discharged by the Revenue. Therefore, all appeals, except the one filed by Revenue, were allowed.

5. The appeal filed by Revenue (E/1054/2010) was rejected as they failed to rebut the findings of the Original Authority or provide reasons why a relevant case law was not applicable in the present case.

6. Consequently, all appeals filed by the manufacturer-appellant and individuals facing personal penalties were allowed, while the appeal filed by Revenue was rejected.