2013 (10) TMI 849 - HC - Central Excise

Dismissal of Delay Condonation Appeal under Central Excise Act - Emphasis on Evidence and Burden of Proof

Commissioner of Central Excise Versus M/s Vikram Cement (P) Ltd.

The Allahabad High Court dismissed the delay condonation application and appeal under Section 35G of the Central Excise Act, 1944. The court emphasized ... Clandestine removal - CESTAT dropped the demand in the absence of proper evidence - Condonation of Delay – Delay of 129 Days – Held that:- Apart from loose papers, which on the face of it cannot be related to the appellant's business account, there was no other evidence to reflect upon clandestine activities of the appellants - The Tribunal also examined the loose papers and found that there was no indication that the same belonged to cement as substantial part of factory premises were let out to other companies, for carrying on business in minerals - The loose papers only referred to tax and figures and did not relate to cement, which stood cleared by the appellant - condonation application as well as the appeal dismissed – Decided against Assessee. Issues: Delay in filing appeal under Section 35G of the Central Excise Act, 1944; Consideration of confessional statement by the Director; Allegation of clandestine removal; Burden of proof on revenue; Evidentiary value of statement; Examination of loose papers as evidence.In this judgment by the Allahabad High Court, the delay in filing an appeal under Section 35G of the Central Excise Act, 1944 was a crucial issue. The court examined whether the delay condonation application should be admitted based on the question of law raised in the appeal. The judgment highlighted that the appeal was concluded by findings of fact, indicating that the Tribunal had considered the confessional statement by the Director regarding clandestine removal. The court analyzed the evidentiary value of the statement, emphasizing that admissions are important but not conclusive evidence, and the burden of proof lies with the revenue to establish guilt effectively.Furthermore, the court delved into the allegation of clandestine removal of cement and examined the evidence presented. The Tribunal found the revenue's claim of 2740 MT of cement removal to be imaginary, considering the plant's maximum capacity. It was noted that loose papers, which could not be linked to the appellant's business accounts, were insufficient to prove clandestine activities. The authorized representative's admission was limited to shortages, with no acknowledgment of duty evasion. The loose papers referenced tax and figures unrelated to cement, indicating a lack of concrete evidence connecting the appellant to the alleged misconduct.Ultimately, the court dismissed the delay condonation application and the appeal, citing the lack of substantial grounds for admission. The judgment underscored the importance of evidence and burden of proof in establishing claims of clandestine activities, emphasizing the need for conclusive proof beyond mere admissions or circumstantial evidence.