2014 (11) TMI 990 - AT - Central Excise

Tribunal overturns majority of demand & penalty, stresses need for evidence in clandestine removal.

SUZUKI SYNTHETICS PVT. LTD. Versus COMMR. OF C. EX., AHMEDABAD-III

The majority decision set aside the demand of Rs. 55,26,426/- and the penalty imposed on the appellant, except for Rs. 1,15,454/- related to fabric ... Clandestine removal of goods - requantification of the duty - recovery of 52 chits from the factory premises of the appellant - Imposition of equivalent penalty - whether there is sufficient evidence for coming to conclusion that the assessee-appellant has clandestinely removed the goods without payment of duty or otherwise - Difference of opinion - Majority order - Held that:- On perusal of the statement of all the four individuals, I find that none of them have implicated the appellant and categorically stated that there was no clandestine removal of the goods and no consideration is received by the company or any of them in cash or otherwise. In short, the entire set of statements is exculpatory. I also find that there is no dispute as to the recovery of 52 yellow chits indicating therein some figures. The said figures have been explained by Shri Suresh P. Chauhan, Folding Clerk who maintained the chits, as were provisional production figures as informed by the workers in the folding department and also includes retreatment figures which do not get reflected in the statutory record. Figures indicated in the yellow chits, may be provisional figures. This view of mine is based upon the fact that the yellow chits does not indicate any quantity recorded as clearance from the factory premises without accounting for. It is also to be noted that though the Revenue authorities have recorded statements of the individuals, they though it fit not to ask any of these people as to the difference between the figures recorded in the yellow chits and the RG-1 and whether the said difference has been clandestinely removed and if removed, to whom. In the absence of any clear indication as to removal of the said goods from the factory premises, only there being mis-match of the figures between private record and RG-1 record, cannot necessarily lead to conclusion that there was clandestine manufacture and removal. - appellant in this case in hand has made out a case that there was no clandestine removal of the goods due to there being no corroboration. - Decided in favour of assessee. Issues Involved:1. Reliance on yellow chits for determining clandestine removal.2. Requirement of corroborative evidence for establishing clandestine removal.3. Validity of statements and explanations provided by the appellant.4. Consideration of payments made by cheques and electricity consumption.5. Adequacy of yellow chits as evidence.6. Analysis of precedent decisions.7. Remand for re-quantification of duty.Issue-wise Detailed Analysis:1. Reliance on Yellow Chits for Determining Clandestine Removal:The case revolves around the recovery of 52 yellow chits from the appellant's factory premises, which allegedly reflected production figures. The appellant argued that these chits included retreatment figures and were not indicative of clandestine removal. The Tribunal noted that the chits were not statutory documents and their authenticity was questioned. The statements from the folding clerk and excise clerk did not admit to any clandestine removal, and the Vice-President confirmed the correctness of these statements.2. Requirement of Corroborative Evidence for Establishing Clandestine Removal:The Tribunal emphasized that clandestine removal must be established by tangible and positive evidence. The yellow chits, being non-statutory documents, required corroboration by other evidence such as statements from buyers, workers, or records of excess electricity consumption. The Tribunal found that the Revenue did not provide sufficient corroborative evidence to support the allegations of clandestine removal.3. Validity of Statements and Explanations Provided by the Appellant:The statements from the folding clerk, excise clerk, and Vice-President did not indicate any clandestine removal. The Tribunal noted that the non-explanation of differences between the yellow chits and RG-1 register entries alone could not lead to a conclusion of clandestine removal. The Tribunal found the explanations provided by the appellant regarding retreatment figures and the absence of inculpatory statements to be credible.4. Consideration of Payments Made by Cheques and Electricity Consumption:The appellant argued that payments to the folding contractor were made by cheques and matched the RG-1 register entries, and there was no excess electricity consumption. The Tribunal found that the Revenue did not rebut these claims. The Tribunal also noted that the Commissioner's observations on power consumption were speculative and not supported by evidence.5. Adequacy of Yellow Chits as Evidence:The Tribunal held that the yellow chits alone, without corroborative evidence, could not be the sole basis for upholding charges of clandestine removal. The Tribunal referred to precedent decisions where similar cases based on private records were set aside due to lack of corroborative evidence.6. Analysis of Precedent Decisions:The Tribunal analyzed various decisions cited by both sides. The decisions cited by the appellant emphasized the need for corroborative evidence in cases of clandestine removal. The Tribunal found that the facts of the present case were similar to those in the precedent decisions, where demands based on private records were set aside due to lack of sufficient evidence.7. Remand for Re-quantification of Duty:The Tribunal noted that the demand needed to be reworked to arrive at the correct amount of duty payable. The matter was remanded to the original adjudicating authority for a detailed analysis of the chits, retreatment register, and RG-1 register. The Commissioner was directed to consider Suitings and Shirtings separately for calculating duty liability.Majority Decision:The majority decision set aside the demand of Rs. 55,26,426/- and the penalty of equal amount imposed upon the appellant. The demand of Rs. 1,15,454/- related to the shortage of fabrics detected during the officers' visit was confirmed along with an equal amount of penalty under Section 11AC of the Central Excise Act, 1944. The Tribunal concluded that the yellow chits alone were insufficient to establish clandestine removal without corroborative evidence.