2019 (7) TMI 1814 - AT - Central Excise

Tribunal upholds demand for clandestine goods removal due to missing invoices, partner's penalty deemed unnecessary

The Tribunal upheld the demand for clandestine removal of goods due to the absence of invoices for cleared goods, leading to non-payment of excise duty. ... Clandestine Removal - demand was raised on the basis of delivery challans record of the appellant - penalty on partners - HELD THAT:- Demand of ₹ 1,20,465/- was confirmed on the basis of challans recovered from the appellant which were accepted in the confessional statements of the partners of the appellant firm. The appellant could not produce any proof that against the goods cleared under any invoices were issued. Therefore, it is clear that the goods cleared under challan, there were no invoices issued by the appellant. Consequently, no excise duty was paid. Therefore, this is a clear case of clandestine removal of goods. Penalty on partner - HELD THAT:- The partnership firm has already been penalized. There cannot be separate penalty against the partner as held in the judgment in the case of PRAVIN N. SHAH VERSUS CESTAT [2012 (7) TMI 850 - GUJARAT HIGH COURT] - Penalty on partner set aside. Appeal dismissed. Issues:1. Alleged evasion of Excise duty through clandestine clearance of finished goods and wrongful exemption claim under notification 12/2012.2. Confirmation of demand for clandestine removal of goods and penalty imposition.3. Imposition of penalty on the partner of the appellant.Analysis:1. The appellants, engaged in manufacturing pumps & pump sets, were accused of evading Excise duty through clandestine clearance of goods and wrongly availing exemption under notification 12/2012. An enquiry was conducted based on intelligence, leading to a Show Cause Notice. The Adjudication Authority dropped the demand related to the exemption but confirmed a demand of &8377; 1,20,465 against clandestine removal, with a corresponding penalty. The Commissioner (Appeal) upheld this decision, prompting the present appeals.2. The appellant's counsel argued that the demand was based solely on delivery challans and statements of two buyers, without proper correlation with invoices. It was contended that only buyers admitting to the purchase should be held accountable. The absence of reconciliation between challans and invoices was highlighted. The Revenue's representative reiterated the findings, emphasizing confessional statements admitting to goods clearance without invoices. The Tribunal upheld the demand, noting the lack of evidence for goods cleared under invoices, indicating clandestine removal and non-payment of excise duty.3. Regarding the penalty imposed on the partner of the appellant, the Tribunal referenced a previous judgment stating that once the partnership firm is penalized, a separate penalty against the partner is not warranted. Accordingly, the appeal related to F Tech Engineering Co. was dismissed, while the appeal by Shri Jignesh Pambhar was allowed.In conclusion, the Tribunal upheld the demand for clandestine removal of goods due to the absence of invoices for cleared goods, leading to non-payment of excise duty. The penalty imposed on the partner was deemed unnecessary after penalizing the firm, following established legal precedent.