2019 (8) TMI 379 - AT - Central Excise

Clandestine removal - alleged clearance of automotive paints/coats under the brand name SUNLAC , manufactured by the appellant which was being sold under the invoices of M/s Spraylac - records of production for the period of dispute are not available and that the charges of clandestine clearance have been inferred from lateral evidence - cross-examination of witnesses - principles of natural justice - HELD THAT - The lack of any evidence pertaining to procurement of excessive raw material, or of shipment of finished goods, to the trading unit is not in dispute. It would appear that the statement of various individuals, that have been relied upon to substantiate the indirect evidence introduced in the form of submission to another statutory authority in a different context, viz., to secure of brand name, the discharge of liability of sales tax and the plea before the Settlement Commission by successor entity would necessarily have to be subject to the test of validity and reliability. It is seen from the records that the findings of the adjudicating authority, taking note of the circumstances of non-availability of records, appear to have placed excessive reliance on uncorroborated evidence. The confirmation of demand of duty rests, therefore, upon the shakiest of foundation. The adjudicating authority was required to consider the request for cross-examination of the witnesses - matter remanded back to the original authority to decide the matter afresh - appeal allowed by way of remand.

Summary

Issues: Alleged clandestine clearance of 'automobile paints/coats' under the brand name 'SUNLAC' by the appellant, reliance on lateral evidence, tax liability determination, exemption under notification no. 8/2003-CE, production capacity, cross-examination of witnesses, confirmation of demand, reliance on uncorroborated evidence, violation of principles of natural justice, remand of the matter.

Analysis:
1. The case involves the alleged clandestine clearance of 'automobile paints/coats' under the brand name 'SUNLAC' by the appellant, which was being sold under the invoices of another trading entity. The investigation relied on lateral evidence due to the unavailability of production records for the disputed period. The investigating authority concluded that surreptitious manufacture and clearance were established based on an affidavit filed for securing the brand 'SUNLAC' and high turnover not reflected in excise documents.

2. The appellant argued against the reliance on the affidavit filed for trademark purposes, emphasizing the lack of evidence of illicit manufacture or removal to the trading entity. They also claimed exemption under notification no. 8/2003-CE due to clearances being below the dutiability threshold. The alleged clandestine clearance was deemed improbable based on production capacity and the dismissal of cross-examination as a dilatory tactic.

3. The authorized representative contended that despite the unavailability of production records, the confirmation of demand was unaffected as the statements relied upon were never retracted. Corroborative evidence from pen drives and computers was used to establish the allegations. Legal precedents were cited to support the argument that private records, along with inculpatory statements, could establish an attempt to evade duty.

4. The lack of evidence regarding procurement of excessive raw material or shipment of finished goods to the trading unit was acknowledged. The reliance on uncorroborated evidence was questioned, citing a Supreme Court decision emphasizing the right to cross-examine witnesses. The confirmation of duty demand was deemed weak, leading to the remand of the matter for fresh consideration by the original authority.

5. The judgment highlighted the importance of adhering to principles of natural justice, specifically the right to cross-examine witnesses, to ensure a fair adjudication process. The decision underscored the necessity of considering all relevant evidence and allowing parties the opportunity to challenge and clarify any incriminating statements or evidence presented against them.