2018 (12) TMI 1530 - AT - Central Excise

Clandestine removal - reliability on statements - corroborative evidences - Held that - Commissioner(Appeals) has admitted that there is no other corroborative evidence to establish clandestine removal except for the statement of Shri Rakesh Jhindal, who was Managing Director of the Manufacturing unit - Tribunal in the case of Rimjhim Ispat Ltd. and Others 2018 (8) TMI 477 - CESTAT ALLAHABAD have held that only on the basis of statement clandestine removal cannot be established - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Appeal arising from common impugned Order-in-Appeal dated 30.10.2017.
2. Allegation of clandestine removal of goods and evasion of Central Excise duty.
3. Upholding of Order-in-Original by Commissioner(Appeals) based on corroborative evidence and statement of Managing Director.
4. Interpretation of burden of proof in cases of clandestine removal under Central Excise Act.
5. Applicability of previous judicial rulings on burden of proof in similar cases.
6. Consideration of statements as evidence in establishing clandestine removal.
7. Setting aside of impugned order and allowing the appeal by the Tribunal.

Analysis:
The judgment by the Appellate Tribunal CESTAT ALLAHABAD, delivered by Member (Technical) Shri Anil G. Shakkarwar, pertained to two appeals arising from a common impugned Order-in-Appeal dated 30.10.2017. The case involved allegations of clandestine removal of goods and evasion of Central Excise duty by the appellants, who were engaged in the manufacture of corrugated boxes and laminated rolls. The Revenue officers conducted investigations and issued a show cause notice based on the statement of the Managing Director, suggesting possible clandestine activities leading to duty evasion amounting to ?11,91,473. The original authority confirmed the demand and imposed penalties, which were challenged by the appellants before the Commissioner(Appeals).

The Commissioner(Appeals) upheld the Order-in-Original, emphasizing the acceptance of clandestine removal by the Managing Director in his statement as a crucial factor. However, the learned Counsel for the appellants cited judicial precedents to argue that the burden of proof in cases of clandestine removal under the Central Excise Act lies on the Revenue, and mere statements without corroborative evidence are insufficient to establish such allegations. The Counsel referenced a ruling by the Hon’ble Delhi High Court and a previous decision by the Tribunal to support this argument.

Upon considering the rival contentions and the lack of corroborative evidence apart from the Managing Director's statement, the Tribunal concurred with the Counsel's submissions. The Tribunal highlighted that solely relying on statements for establishing clandestine removal is inadequate, as per the precedent set by previous judgments. Therefore, the impugned order was set aside, and the appeal was allowed, granting the appellants consequential relief as per the law. This decision underscores the significance of substantial evidence in proving allegations of clandestine activities and duty evasion under the Central Excise Act, shifting the burden of proof onto the Revenue to establish such claims convincingly.