2019 (6) TMI 363 - AT - Central Excise

Tribunal sets aside penalty on deceased, directs duty payment by appellant, requires corroborative evidence

The Tribunal found that the Commissioner exceeded the scope of the remand order by not addressing the need for corroborative evidence in a case involving ... Clandestine manufacture and removal - whether learned Commissioner has exceeded the brief in relation to the CESTAT’s order while continuing proceedings in remand? - HELD THAT:- This Bench has given a categorical finding, not once but twice, in the above cited order that the entries at the pocket dairies are not corroborated by any evidences. Therefore, we find that there is substance in the submissions of the appellants, as far as the impugned order travelling beyond the remand order is concerned. The Learned AR for the department has reiterated the findings of the OIO and submitted that learned Commissioner has dealt with the evidences in detail in para 13 of OIO dated 26.9.2007. We find that learned Commissioner has given similar findings as in the earlier order based on the statements recorded only. The key issues, raised by the Tribunal, like corroborative evidences in the form of transport documents, purchase of raw materials, invoices, raw material consumption etc. to prove the clearances, were not discussed - Even accepting the contention of the learned AR that all issues were kept open, we find that as observed by the Tribunal in the above cited order, no corroborative evidences to prove the clandestine removal alleged in Annexure-D1 to the show cause notice are coming forth. Whether the appellants are liable to pay the duty on the alleged clandestine removal and whether the penalty imposed against a person who is no more abates? - HELD THAT:- As we find that none of the above evidences have been put up in the show-cause notice and discussed in the OIO, we hold that demand as per as Annexure -D1 should go away. Therefore, we set aside the duty demand as per Annexure D1 to the show-cause notice. Demand as per Annexures-D2 and D3 of the show cause notice - HELD THAT:- The appellants have accepted the liability only with a request for extending cum-duty benefit. We find that the request can be accepted. For computation of duty, the matter needs to go back to the original authority. Duty demand as per Annexure-D4 - HELD THAT:- The appellants contended that the goods were very much lying in the factory and as such, no duty can be demanded as it is not the case of the department that the goods have been removed without payment of duty. Penalty imposed on the main appellant i.e., M/s. Suraj Machine Tools - HELD THAT:- Since the duty is confined only to Annexures-D2 and D3, we hold that penalty will be equivalent to the duty payable by the appellants in terms of the annexures after extending cum-duty benefit. Appeal allowed by way of remand. Issues Involved:1. Whether the Commissioner exceeded the scope of the remand order by the Tribunal.2. Whether the appellants are liable to pay duty on alleged clandestine removal.3. Whether the penalty imposed on a deceased person abates.Detailed Analysis:1. Scope of Remand Order:The Tribunal had previously remanded the case for de novo adjudication, emphasizing the lack of corroborative evidence for entries in a pocket diary (Annexure-D1). The Tribunal's order highlighted the need for evidence such as transport documents, raw material purchases, and invoices to substantiate claims of clandestine removal. Despite this, the Commissioner reiterated findings based on statements without addressing the need for corroborative evidence. The Tribunal found this to be beyond the scope of the remand order, as the crucial issues raised were not discussed or evidenced.2. Liability for Duty on Clandestine Removal:- Annexure-D1: The Tribunal found no corroborative evidence for the entries in the pocket diary, such as transport documents or raw material purchases, to prove clandestine removal. Therefore, the demand based on Annexure-D1 was set aside.- Annexures-D2 and D3: The appellants accepted liability but requested cum-duty benefit. The Tribunal remanded this issue back to the original authority for duty computation after allowing the cum-duty benefit.- Annexure-D4: The appellants argued that the goods were still in the factory, and there was no evidence of removal without payment of duty. The Tribunal set aside the demand related to Annexure-D4.3. Penalty on Deceased Person:The Tribunal noted that the penalty imposed on the deceased (Sri K.G. Ravindran) should abate. The penalty on the main appellant, M/s. Suraj Machine Tools, was confined to the duty payable as per Annexures-D2 and D3 after allowing cum-duty benefit.Conclusion:The Tribunal set aside the impugned order and allowed the appeal by way of remand with specific directions:- The demand related to Annexure-D1 was set aside.- The issue related to duty demand as per Annexures-D2 and D3 was remanded back for duty computation after allowing cum-duty benefit.- M/s. Suraj Machine Tools was directed to pay a penalty equivalent to the duty payable as determined.- The demand related to Annexure-D4 was set aside.(Order pronounced in Open Court on 07/06/2019.)