2024 (7) TMI 304 - HC - Central Excise

Clandestine removal - Oxygen - HELD THAT - Tribunal has given the finding that ' Without prima-facie, establishing the fact that there has been a clandestine removal (if not with an arithmetical precision), such an allegation, will not survive. It is seen that not even a statement of the person, who managed the production/consumption of oxygen or the person who has maintained the statistical report, has been recorded by the Revenue. Without such bare a minimum enquiry, the charge of clandestine removal, cannot be sustained.' The findings recorded by the Tribunal are findings of fact based on consideration of relevant documentary and other evidences on record. Therefore, no substantial question of law is involved - Appeal dismissed.

Summary

Issues:
1. Delay Condonation Application
2. Appeal against Excise Appeal No. 642 of 2006

Delay Condonation Application:
The appeal was filed 223 days beyond the limitation period, along with a delay condonation application. The respondent had no objection to the condonation of delay, leading to the allowance of the delay condonation application. The delay in filing the appeal was condoned.

Appeal against Excise Appeal No. 642 of 2006:
The Tribunal's impugned order was examined, which highlighted discrepancies in the consumption figures of oxygen gas. The Department alleged clandestine removal based on these discrepancies. However, the Tribunal found that no substantial investigation was conducted, no statements were recorded, and no proof of clandestine removal was presented. The Tribunal also noted that the Department failed to establish the charge of clandestine removal without prima facie evidence. Additionally, the issue pertained to 2001-2002, and the show-cause notice was issued after a significant delay, rendering it untenable. The Tribunal concluded that the demand was not sustainable on merits or limitation grounds, leading to the setting aside of the impugned order and allowing the appeal with consequential relief to the appellant. The Tribunal dismissed the appeal at the admission stage, stating that no substantial question of law was involved as the findings were based on factual considerations.

This comprehensive analysis of the judgment covers the delay condonation application and the appeal against Excise Appeal No. 642 of 2006, providing detailed insights into the Tribunal's findings and the ultimate decision rendered.