2008 (7) TMI 343 - AT - Central Excise

Tribunal dismisses Department's appeals in duty & penalty case due to lack of evidence

The Tribunal upheld the order of the Commissioner (Appeals) in a case involving appeals by the Department against the confiscation of cement and ... Unaccounted stock – clandestine removal - demand has been raised relying on entries in computer floppy - said evidence was not placed before the concerned official of the company for the purpose of enlisting their views/defence - respondent submitted that some of the entries related to orders received by them but not executed - clandestine removal is not proved by any tangible evidence - other private records do not get corroborated by any evidence i.e. from the buyers - appeals by the Department are rejected – demand not warranted Issues:Appeals filed by the Department against the order of the Commissioner (Appeals) dated 28-8-03.Analysis:The case involved three appeals filed by the Department against the order of the Commissioner (Appeals) dated 28-8-03. The Central Excise Officers found excess stock of cement at the premises of the appellant company along with private records and computer floppies containing production, stock, and clearance details. A statement by Shri Nijamuddin E. Indorewala initially admitted to clearing unaccounted goods but later retracted the statement. Subsequently, a show cause notice was issued, leading to the confiscation of cement and imposition of duty and penalties. The Commissioner (Appeals) allowed the appeals by the parties, prompting the Department to file the present appeals.The Department argued that the Commissioner erred in relying on the retracted statement of Shri Nijamuddin E. Indorewala and should have considered the documentary evidence recovered during the investigation. However, the Tribunal noted that no corroborative evidence was presented to prove clandestine removal of goods. The demand for duty was deemed unwarranted due to the lack of tangible evidence, such as payments received by the appellants or buyers, transportation records, raw material receipts, or evidence of cement disposal by the buyers.The Tribunal observed that the demand was based on entries in a computer floppy without presenting this evidence to the company officials for their views. The inference of clandestine removal lacked tangible support, especially since the key evidence from Shri Nijamuddin E. Indorewala was retracted. The private records did not have corroborative evidence from buyers, and the inference drawn from the floppy data was not substantiated through proper verification. Consequently, the Tribunal upheld the order of the Commissioner (Appeals) and rejected the appeals by the Department.In conclusion, the Tribunal found that the Department failed to provide sufficient evidence to support the demand for duty and penalties. The lack of corroborative evidence, retracted statements, and reliance on unverified data led to the rejection of the Department's appeals against the order of the Commissioner (Appeals) dated 28-8-03.