2012 (10) TMI 340 - AT - Central Excise

Tribunal Overturns Duty Demand & Confiscation Orders, Orders Fresh Adjudication with Cross-Examination

The tribunal set aside the duty demand, confiscation orders, and penalties, remanding the case for de novo adjudication with instructions to allow ... Demand of duty - cross examination - held that:- The request for cross examination has been rejected on the ground that the person sought to be cross examined are co-noticees who can not be compelled to appear for cross examination, which is incorrect as partners and employees of M/s. SKTC, employees of M/s. HTGC, and Chemical Examiner of SIIR whose cross examination had been sought along with others, are not co-noticees. The cross examination of the proprietors/partners and employees of the transport companies is necessary - matter set aside and restored to adjudicating authority for de novo adjudication after permitting the cross objection. No accounting of non cenvatable goods – Held that:- there is no provision for maintaining account of non-cenvatable inputs - inputs - supari in this case is a non-cenvatable input - no provisions of the Central Excise Rules, 2002 have been contravened in respect of the raw supari and processed supari seized from the premises of M/s. DG and hence neither M/s. DG nor M/s. ST are liable for penalty under Rule 25(1) nor the seized supari is liable for confiscation under Rule 25(1) of the Central Excise Rules. Confiscation - just for non-accountal of supari, provisions of Rule 26, as the same stood during the period of dispute, would not be attracted. In view of this, penalty on Shri Dhirendra Shukla is not sustainable and the same set aside. Confiscation of cash - money laundering – charge against these persons is basically of money laundering, for which there are no provisions for penalty in the central excise rules and certainly not in Rule 26, which is attracted in respect of any person, who is concerned in acquiring the possession of or is concerned in dealing with any excisable goods, which he knew or had reason to believe were liable for confiscation - irrespective of whether the currency is liable for confiscation or not, no penalty under Rule 26 is imposable on M/s. SVOL, Shri Sanjiv Mishra and Shri Pratyoosh Mishra as Directors of M/s. SVOL and as such, the part of the impugned order imposing penalty on them under Rules 26 is set aside Issues Involved:1. Duty evasion by M/s. ST.2. Confiscation of currency seized.3. Confiscation of Gutka pouches.4. Penalty on transporters.5. Confiscation of supari.6. Penalty on M/s. SVOL and its directors.Detailed Analysis:1. Duty Evasion by M/s. ST:The primary issue revolves around whether M/s. ST evaded duty amounting to Rs. 7,17,16,580/-. The duty demand is based on three components: (i) Rs. 1,46,185/- for Gutka pouches seized from transporters and dealers, (ii) Rs. 35,80,500/- for alleged excess quantity packed in gunny bags, and (iii) Rs. 6,79,89,895/- based on transport company records indicating Gutka consignments described as 'Zarda,' 'Masala,' etc.The tribunal noted the necessity of cross-examination of witnesses whose statements were relied upon by the department. The statements of transporters and dealers were crucial, but their cross-examination was not allowed, which the tribunal found to be a breach of natural justice. The tribunal directed a de novo adjudication allowing cross-examination and possibly fresh testing of Gutka samples by CRCL.2. Confiscation of Currency Seized:The currency of Rs. 4,38,80,530/- seized from the residential-cum-factory premises of Shri Sanjiv Mishra was alleged to be the sale proceeds of Gutka cleared without payment of duty. The tribunal held that the confiscation of currency is linked to the duty evasion allegation. Since the duty demand issue was remanded for fresh adjudication, the confiscation of currency was also set aside and remanded for de novo adjudication.3. Confiscation of Gutka Pouches:The tribunal addressed the confiscation of 85008 Gutka pouches seized from M/s. ST's factory for non-accountal. This issue is also linked to the duty evasion allegation. The tribunal set aside the confiscation and remanded it for de novo adjudication along with the main duty demand issue.4. Penalty on Transporters:Penalties were imposed on transporters M/s. SKTC, M/s. HTGC, and M/s. NTFC under Rule 26 of the Central Excise Rules. The tribunal noted that penalties on transporters require evidence of their knowledge that the goods were liable for confiscation. The tribunal set aside the penalties and remanded the issue for fresh adjudication.5. Confiscation of Supari:The supari seized from M/s. DG was confiscated under Rule 25 of the Central Excise Rules for non-accountal. The tribunal found no provision in the Central Excise Rules requiring the maintenance of accounts for non-cenvatable inputs like supari. Consequently, the confiscation and penalties on M/s. ST and Shri Dhirendra Shukla were set aside.6. Penalty on M/s. SVOL and Its Directors:Penalties were imposed on M/s. SVOL and its directors for allegedly fabricating documents to show the legal origin of the seized currency. The tribunal held that Rule 26 of the Central Excise Rules, as it stood during the period of dispute, did not cover such activities. Therefore, penalties on M/s. SVOL and its directors were set aside.Conclusion:The tribunal set aside the duty demand, confiscation orders, and penalties, remanding the case for de novo adjudication with instructions to allow cross-examination of witnesses and possibly fresh testing of Gutka samples. The tribunal emphasized the need for adherence to principles of natural justice and directed the Commissioner to expedite the proceedings.