2018 (2) TMI 1311 - AT - Central Excise

Tribunal overturns Revenue's order alleging clandestine goods removal, citing appellant's strong evidence and legal precedents.

M/s Swastik Metal (India) Versus Commissioner of Central Excise & Service Tax, Ahmedabad

The tribunal set aside the impugned order in a case concerning the Revenue's claim of clandestine removal of goods from a factory. The appellant's ... Clandestine removal - finished goods - entire case of the Revenue is on the findings of the lower authorities that two duplicating note books were found which contained information regarding clandestine removal of the goods - Held that: - the two purchasers at the end of the statements itself have stated that they have not received any goods without duty paid documents from the appellant. It seems that the First Appellate Authority has not considered these important/vital evidence that the purchasers statements cannot be relied upon, on the face two purchasers retracted the statements while, two of them denying receipts of goods without documents. The appellant had produced a Chartered Engineer Certificate indicating the production capacity and the details which indicated that the appellant s factory could not have produced the kind of goods allegedly removed clandestinely, during the period in question - the charge of clandestine removal is very serious in nature, and the claim of the appellant s counsel nothing corroborative is brought on record as to unusual consumption of utilities and unaccounted purchase of raw materials, is correct. Appeal allowed - decided in favor of appellant. Issues involved:- Clandestine removal of goods- Consideration of statements by purchasers- Production capacity of the factory- Relevance of Chartered Engineer CertificateClandestine removal of goods:The case revolved around the Revenue's claim of clandestine removal of finished goods from the factory premises during a specific period. The lower authorities based their findings on the discovery of duplicating note books containing information on clandestine removal, an intercepted vehicle carrying goods without proper documents, and statements by the partner and purchasers indicating clandestine activities.Consideration of statements by purchasers:The appellant argued that the First Appellate Authority did not adequately consider the retraction of statements made by purchasers who initially admitted to receiving goods without proper documents. Two purchasers retracted their statements through affidavits, while two others denied receiving any goods without duty paid documents. This crucial evidence undermined the Revenue's case of clandestine removal, as acknowledged by the appellate tribunal.Production capacity of the factory:The appellant presented a Chartered Engineer Certificate demonstrating the factory's production capacity, indicating that it could not have produced the volume of goods allegedly removed clandestinely. The tribunal noted that this certificate was not contradicted by any other evidence, emphasizing the seriousness of the charge of clandestine removal and the lack of corroborative evidence regarding unusual consumption of utilities or unaccounted purchase of raw materials.Relevance of Chartered Engineer Certificate:The tribunal highlighted the significance of the Chartered Engineer Certificate in challenging the allegations of clandestine removal. It noted that the lower authorities failed to address this certificate or provide reasoning on the discrepancy between the alleged removal volume and the factory's production capacity. Relying on established legal precedents and the jurisdictional High Court's decisions upholding similar cases, the tribunal found the impugned order unsustainable and set it aside, allowing the appeal with consequential reliefs.This detailed analysis of the judgment showcases the key issues addressed, the arguments presented by both parties, and the tribunal's reasoning in reaching its decision to set aside the impugned order.