2018 (12) TMI 152 - AT - Central Excise

Clandestine manufacture and removal - unrecorded cash found from the business premises - illicit manufacture of Gutka - it appeared to the officer that the same is as result of unrecorded sale and clandestinely removed Gutkha of various brands manufactured at their various factories - Held that - The appellant had only stated in his statement under section 14 that the cash found and seized was out of their business operations. The appellant had also led evidences that they had income from other business of trading in Bhusan, provisions and also on rental income. Nowhere it is stated that the cash recovered is from the sale proceeds of clandestinely removed Gutka. The allegation of clandestine removal does not stand in view of the lack of evidences on record and also the statements relied upon by Revenue are not a good piece of evidence as they are hit by section 9D of the Central Excise Act - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Confiscation of cash amounting to ?1,75,000 as sale proceeds of clandestinely removed Gutka.
2. Imposition of penalty under Rule 26 of Central Excise Rules, 2002.

Analysis:

Issue 1: Confiscation of Cash
The case involved the confiscation of ?1,75,000 cash found in the office premises of the appellant during a search operation. The officers suspected the cash to be the result of unrecorded sale and clandestinely removed Gutka of various brands. The appellant's brother's statement indicated involvement in trading of Gutka brands. The Assistant Commissioner observed the lack of proper evidence from the appellant regarding the cash source and imposed confiscation and penalty. However, the appellant contended that the cash was from their legitimate income and not related to clandestine activities. The Commissioner upheld the confiscation citing incriminating documents and lack of convincing defense. The Tribunal analyzed the evidence and found no direct link between the cash and clandestine Gutka sales. They noted the appellant's diverse business operations and lack of concrete evidence linking the cash to illegal activities. Referring to related cases, the Tribunal concluded that the confiscation was unjustified due to insufficient evidence, overturning the decision and providing consequential relief to the appellant.

Issue 2: Penalty Imposition
The penalty under Rule 26 of Central Excise Rules, 2002 was imposed alongside the confiscation. The appellant challenged the penalty citing delay in the show cause notice and lack of conclusive evidence linking the cash to clandestine Gutka sales. The Commissioner upheld the penalty based on the appellant's admission during investigation and the presence of incriminating documents. However, the Tribunal, after reviewing the evidence and related cases, found the penalty unjustified due to the lack of direct evidence connecting the cash to illegal activities. They set aside the penalty along with the confiscation, providing relief to the appellant based on the insufficiency of evidence and the absence of a clear link between the cash and clandestine Gutka sales.

In conclusion, the Tribunal overturned the confiscation of the cash amount and the imposition of the penalty under Rule 26 of Central Excise Rules, 2002, providing consequential relief to the appellant based on the lack of concrete evidence linking the cash to clandestine Gutka sales.