2015 (10) TMI 2195 - AT - Central Excise

Tribunal emphasizes evidence in clandestine removal appeal, dismisses refund claim without analysis

The Tribunal allowed the appeal filed by the appellant concerning the alleged clandestine removal of finished goods due to lack of sufficient evidence. ... Evasion of duty - Clandestine removal of goods - Whether the case of clandestine removal can be held to be established on the basis of statement dated 12.09.2006 of Shri Rajesh R. Patel, Excise Executive and Authorised Signatory of the appellant - Held that:- There is no other corroborative evidence or statement given by any other person to substantiate that there was any clandestine removal on the part of the appellant. It has been rightly pointed out by the learned advocated appearing on behalf of the appellant that this statement only talks about payment of an amount voluntarily made in good faith with a scope to explain the shortages. By a letter dated 16.09.2006 appellant, within a week s time of Panchnama, explained the department that there was no shortages as several materials are lying spread over everywhere in the factory premises, which are rejected as well as returned goods. No verification was made during investigation with respect to the claim made by the appellant. During subsequent investigation conducted, by recording statement dated 11.08.2009 of Shri S.R.B. Nair, Chief Operating Officer and Director of the appellant, also explains the case of the appellant that there was no shortage of finished goods. - there is even no confessional statement of the appellant, because the very first statement at 12.09.2006 convey that duty was paid voluntary in good faith with a scope to explain shortages later. Rather the shortages detected during the visit of the officers of Central Excise were intimated as non-existing by a letter within a week from the date of visit. To reject the appellant's claim of no shortage of finished goods, a verification ought to have been done immediately. Shortages were alleged to be that of chemicals when the shortage where it was not found admitted but a statement was given that the shortage will be explained later and the same was explained by the appellant during subsequent investigations. In the absence of any other independent corroborative evidence and after perusal of the case records it is to be held that shortages and clandestine removal of the finished goods are not established and are solely based on presumptions and assumptions. - Decided in favour of assessee. Issues:1. Clandestine removal of finished goods based on statement dated 12.09.2006.2. Refund claim of Rs. 11,40,458 paid during investigation.Analysis:1. The appeal was filed regarding shortages of finished goods found during a search in the factory premises. The appellant claimed no clandestine intention and voluntarily reversed the duty. The appellant disputed the duty alleged to have been evaded and emphasized that there was no clandestine manufacture or removal. The statement of the Excise Executive was considered an afterthought by the Revenue, but the Tribunal noted the lack of corroborative evidence to establish clandestine removal. The Bench highlighted that a case of clandestine removal cannot solely rely on confessional statements, and in this case, no confessional statement was present. The Tribunal emphasized the importance of verification and independent corroborative evidence, ultimately allowing the appeal based on lack of evidence for clandestine removal.2. The second issue pertained to a refund claim of Rs. 11,40,458 paid during the investigation, which was returned as premature by the adjudicating authority. The Commissioner (Appeals) also dismissed the appeal, upholding the original order. The appellant argued for the refund, but the Tribunal did not delve into this issue specifically in the judgment, as the primary focus was on the clandestine removal issue. Consequently, the appeal regarding the refund claim was disposed of without detailed analysis in the judgment.In conclusion, the Tribunal allowed the appeal filed by the appellant concerning the alleged clandestine removal of finished goods due to lack of sufficient evidence and emphasized the importance of verification and corroborative evidence in such cases. The judgment did not extensively address the second issue related to the refund claim, as the primary focus was on the clandestine removal issue.