Clandestine removal upheld, with duty and penalty sustained subject to cum-duty re-quantification and interest.

Clandestine removal was upheld where the assessee admitted production and sale without duty payment, and the later explanation of defective returns and trading of 100 ml shampoo bottles lacked documentary support; statutory records and D3 intimation were absent, so the allegation stood established. The duty demand and penalty under Section 11AC were sustained, but both had to be reworked on a cum-duty basis because excise duty was not shown separately in the sale price. Interest under Section 11AB remained leviable on the re-quantified duty. A separate penalty under Rule 173Q was set aside, and input duty credit was rejected for want of evidence.

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Issues: (i) Whether clandestine manufacture and removal of goods without payment of duty stood established; (ii) whether the duty demand, penalty under Section 11AC, interest under Section 11AB, and the separate penalty under Rule 173Q required interference; and (iii) whether cum-duty assessment and input duty credit were to be considered while re-quantifying the demand.

Issue (i): Whether clandestine manufacture and removal of goods without payment of duty stood established.

Analysis: The respondents had admitted during investigation that the goods were produced and sold without payment of duty and had also paid a substantial part of the duty demanded. The later explanation that some goods were defective returns for reprocessing, or that certain 100 ml. shampoo bottles were merely traded, was not supported by documentary evidence. There was no D3 intimation, the statutory records did not reflect the claimed transactions, and the documents relied upon for purchase of 100 ml. shampoo were dated later than the alleged sales.

Conclusion: Clandestine removal was held to be established.

Issue (ii): Whether the duty demand, penalty under Section 11AC, interest under Section 11AB, and the separate penalty under Rule 173Q required interference.

Analysis: The lower appellate authority had granted relief without properly appreciating the evidence. The demand and the penalty under Section 11AC were sustained, but the quantum had to be reworked in the light of cum-duty price assessment. Interest under Section 11AB was also held leviable on the duty as re-quantified. However, a separate penalty under Rule 173Q was found unwarranted in the facts of the case.

Conclusion: The duty demand and Section 11AC penalty were upheld subject to re-quantification, interest under Section 11AB was leviable, and the separate penalty under Rule 173Q was set aside.

Issue (iii): Whether cum-duty assessment and input duty credit were to be considered while re-quantifying the demand.

Analysis: The records did not show separate collection of excise duty, so the assessee was entitled to cum-duty benefit for re-quantification. The claim for input duty credit, however, was not supported by documentary evidence and could not be accepted.

Conclusion: Cum-duty assessment was allowed for re-quantification, but input duty credit was rejected.

Final Conclusion: The order of the lower appellate authority was set aside, the original adjudication was substantially restored, and the matter was sent back only for fresh quantification of duty, penalty under Section 11AC, and interest after giving cum-duty benefit.

Ratio Decidendi: Clandestine removal may be sustained on admissions and corroborative surrounding circumstances in the absence of supporting statutory records, while cum-duty benefit must be given where duty is not shown separately in the sale price.

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