Clandestine removal and Modvat credit require direct corroborative proof; unsupported records could not sustain duty, penalty, or interest.

Clandestine removal allegations must be supported by reliable, corroborative evidence directly linking the assessee to unaccounted manufacture and clearance; common or third-party records and transporter material, without such linkage, are insufficient, so the duty demand was set aside. Modvat credit cannot be denied merely because inputs moved between units of the same company where duty-paid inputs were received and used; the disallowance and recovery were therefore unsustainable. Once the duty and credit findings failed, consequential penalties and interest also fell, and the penalties under the cited rules were set aside.

---

---

Issues: (i) Whether the demand of duty on alleged clandestine removal was sustainable; (ii) whether the disallowance and recovery of Modvat credit was sustainable; (iii) whether the penalties and interest could be upheld.

Issue (i): Whether the demand of duty on alleged clandestine removal was sustainable.

Analysis: The demand was founded mainly on a gate register, a laboratory register, transporter records, and certain statements. The Tribunal found that the trading concern in the common was an independent entity, that the gate register was a third-party/common record not sufficient by itself to attribute all entries to the appellant, and that the laboratory register only showed sample testing and blending without proving unaccounted manufacture and clearance by the appellant. It also held that transporter records and octroi material, without reliable linkage to the appellant's own manufacturing and clearance records, were insufficient to establish clandestine removal.

Conclusion: The duty demand on alleged clandestine removal was not sustainable and was set aside in favour of the assessee.

Issue (ii): Whether the disallowance and recovery of Modvat credit was sustainable.

Analysis: The credit denial was based on alleged non-receipt of inputs at the Mumbai unit and the receipt of part of the goods at the other unit of the same company. The Tribunal accepted that the units belonged to the same corporate entity and treated the matter as, at most, a procedural irregularity. It also noted that the department had not established that the total credit was inadmissible on a substantive footing and that the facts supported eligibility of credit where duty-paid inputs were received and used within the same company's manufacturing units.

Conclusion: The recovery and disallowance of Modvat credit were not sustainable and were set aside in favour of the assessee.

Issue (iii): Whether the penalties and interest could be upheld.

Analysis: Once the duty demand and credit disallowance failed, the consequential penalties and interest also lacked foundation. The Tribunal further found that penalty under Rule 173Q(1) could not be sustained on the record and that penalty under Rule 209A was not warranted in the absence of a sustainable confiscation-related finding.

Conclusion: The penalties and interest were not sustainable and were set aside in favour of the assessee.

Final Conclusion: The impugned order was set aside in its entirety, and the appeals were allowed with consequential relief.

Ratio Decidendi: Allegations of clandestine removal and Modvat ineligibility must be proved by reliable, corroborative evidence directly linking the assessee to unaccounted manufacture, clearance, or inadmissible credit; third-party or common records, without such linkage, are insufficient to sustain duty, credit reversal, or consequential penalties.

---