2019 (12) TMI 106 - AT - Central Excise

Clandestine removal - sponge iron - shortage of stock - demand based on documents and even the statement of the proprietor of said Kailash Traders - case of appellant is that the major part of demand has been dropped by the adjudicating authority below for want of any concrete/corroborative evidence and holding that the entries found in the 3rd parties document are not reliable - HELD THAT - No doubt, the statement of Mr. Kejriwal has recorded inability on his part to give the details about the noticed shortage. However, the fact still remains is that based upon the noticed shortage department has alleged the clandestine removal and that it has already been observed by the adjudicating authority below that Department is not able to prove the allegations. Law has been settled by catena of judgments that clandestine removal is a serious charge. The burden to prove the same is required to be discharged by the Department by production of sufficient and tangible corroborative evidence - As already held by the adjudicating authority that there is no such evidence. Department is not in appeal against the said observations as well. Once this is the fact of the present case, mere shortage in the stock as noticed, that too, on the basis of eye estimation only, the same cannot be held to be convincing corroborative evidence even qua the alleged shortage. Observing that except the statement of the appellant s Director, there is no other evidence produced by the Department to corroborate the noticed shortage - demand do not sustain - appeal allowed - decided in favor of appellant.

Summary

Issues:
Appeals arising from Order-in-Original dated 16.08.2018 - Allegations of clandestine removal of sponge iron - Confirmation of Central Excise duty demand - Shortage detected during search - Appeal for setting aside demand, interest, and penalties.

Analysis:
The judgment pertains to two appeals arising from a common Order-in-Original dated 16.08.2018, involving allegations of clandestine removal of sponge iron by the appellants. The incriminating records of an agent, M/s. Kailash Traders, mentioned the names of the appellants, leading to a search of their premises and subsequent issuance of a show cause notice proposing a demand of Central Excise duty. The original demand was confirmed in Order-in-Original No.110/202 dated 30th November, 2012, which was later remanded for de-novo adjudication due to inconsistencies. The current impugned order dropped the demand of Central Excise duty but confirmed a lesser demand, interest, and penalties, leading to the present appeals before the Tribunal.

The appellant argued that the major part of the demand was dropped due to lack of concrete evidence and unreliable entries in third-party documents. They contended that the remaining demand confirmation was inconsistent and based on mere estimation of shortages, possibly due to their method of recording production. Citing relevant case laws, the appellant sought to set aside the remaining demand, interest, and penalties imposed.

In rebuttal, the Departmental Representative defended the order, emphasizing the lack of a rational explanation from the appellants regarding the noticed shortages. Referring to a statement by one of the appellants, the Department argued that no satisfactory information was provided, and the order was justified. The Department prayed for the dismissal of the appeals.

After hearing both parties, the Tribunal analyzed the matter in light of previous directives and case laws. It noted that the allegations of clandestine removal were based on presumptions and assumptions without sufficient investigation into crucial aspects such as excess production details, raw material purchases, dispatch particulars, sale proceeds realization, and power consumption. The Tribunal emphasized the necessity of corroborative evidence to prove clandestine activities and held that the Department failed to provide such evidence in the current case. The Tribunal cited precedents to highlight that shortages detected without concrete evidence cannot be deemed as genuine clandestine removals. Consequently, the Tribunal recalled the order and allowed both appeals, finding the confirmation of the remaining demand inappropriate due to lack of substantial evidence.

In conclusion, the Tribunal set aside the confirmation of the demand, interest, and penalties, emphasizing the importance of tangible evidence to support allegations of clandestine activities and highlighting the insufficiency of mere shortages detected without proper corroboration.