2018 (11) TMI 1454 - AT - Central Excise

Clandestine removal - Cosmetics - relied upon documents - whole case of Revenue is based on the kacchi parchi/loose slips, recovered from ZMPL - Held that - In view of the said Khacchi parchi/ loose slips not made RUD, the whole case of clandestine removal falls for want of sufficient evidence. There is no enquiry made with respect to the manufacturing capacity and the alleged clandestine removal - further there is no enquiry made with respect to receipt of sufficient packing material although the supplier of packing materials Talman Containers was located at the same plot where JI is situated. Revenue has failed to take notice of records of production maintained mandatorily under the provisions of Drugs and Cosmetics Act, 1940. Further there is no evidence of transport of such goods alleged to be clandestinely removed, nor the evidence of receipt of inputs/raw materials for manufacture of such alleged finished goods cleared clandestinely - ZMPL being a trading concern have not committed any illegality in dispatching goods on the basis of the delivery challan. We further find that the estimation of turnover by Revenue on the basis of MRP is erroneous. For the purpose of SSI the actual transaction value of the clearances is relevant. It is only for the purpose of calculation of duty, that MRP is taken as base and abatement allowed as notified - the mistake of fact committed by the Ld. Commissioner in the impugned order by treating the recovery of Kacchi parchi from possession of Mr Ankit Valecha, whereas it is evident from the show cause notice and the punchnama that the said Kacchi parchi were recovered from Mr Sunil Valecha, Director of ZMPL. The impugned order is unsustainable for the lack of sufficient evidence and mistake of fact - appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Allegation of clandestine removal of goods.
2. Calculation and imposition of duty and penalty.
3. Validity and reliability of evidence (loose slips/Kacchi parchis).
4. Denial of SSI exemption.
5. Procedural lapses and errors in the adjudication process.

Detailed Analysis:

1. Allegation of Clandestine Removal of Goods:
The revenue alleged that the appellants, M/s Jovex International and M/s Hindustan Perfumers, were clearing dutiable goods without registration and without paying the appropriate duty. Searches were conducted at various premises, including the factory premises of Jovex International, the office premises of Zever Marketing Pvt. Ltd. (ZMPL), and the godown premises of Asquire Trading Company. During these searches, goods and documents were seized, and statements were recorded from individuals present at the sites. The revenue's case was primarily based on the interception of a tempo carrying goods and the recovery of loose slips (Kacchi parchis) from the residential premises of Mr. Sunil Valecha, Director of ZMPL.

2. Calculation and Imposition of Duty and Penalty:
The duty and penalty were imposed on the basis of the seized goods and the loose slips. The duty demand for M/s Jovex International was ?52,00,838, and for M/s Hindustan Perfumers, it was ?7,37,469. Penalties were also imposed under Section 11AC of the Central Excise Act, 1944, and Rule 25 of the Central Excise Rules, 2002. The revenue calculated the duty by multiplying the value of goods mentioned on the loose slips by three times to ascertain the MRP, which was challenged by the appellants as erroneous and misconceived.

3. Validity and Reliability of Evidence (Loose Slips/Kacchi Parchis):
The appellants argued that the entire case of the revenue was based on loose slips recovered from the residential premises of Mr. Sunil Valecha. They contended that these slips were not made part of the relied upon documents (RUD) in the show cause notice and were not in the handwriting of any partner of Jovex International or Hindustan Perfumers. The revenue failed to establish the mode of disposal of the goods mentioned on the slips and did not correlate the transactions with the appellants. The tribunal found that the loose slips were not made RUD, and there was no sufficient evidence to support the case of clandestine removal.

4. Denial of SSI Exemption:
The revenue denied the SSI exemption to the appellants by wrongly calculating the turnover based on the MRP multiplied by three times. The appellants argued that their turnover was much below the specified SSI limit when calculated based on the transaction value. The tribunal held that the estimation of turnover by the revenue on the basis of MRP was erroneous, and for the purpose of SSI, the actual transaction value of the clearances is relevant.

5. Procedural Lapses and Errors in the Adjudication Process:
The tribunal noted several procedural lapses and errors in the adjudication process. The loose slips were not packed and sealed, leaving scope for tampering. The statements recorded during the investigation were not retracted, but the tribunal found that the revenue did not examine the witnesses during the adjudication proceedings as required under Section 9D of the Act. The tribunal also found that the revenue failed to make necessary inquiries regarding the manufacturing capacity, receipt of raw materials, and transport of goods. The tribunal observed that the Ld. Commissioner made factual errors, such as treating the recovery of loose slips from Mr. Ankit Valecha instead of Mr. Sunil Valecha.

Conclusion:
The tribunal set aside the impugned order due to the lack of sufficient evidence and procedural lapses. The appeals were allowed, and the confiscation of the tempo valued at ?1,57,500 was also set aside. The appellants were entitled to consequential benefits in accordance with the law.