2010 (4) TMI 822 - HC - Central Excise

Clandestine removal of the goods - Evasion of duty - Penalty - case of the Revenue is based upon the statements of traders and brokers who have stated that M/s. A.S. Corporation had procured fictitious bills from them and sold goods to their buyers as well as statements of transporters who have stated that they had lifted the goods from the factory of Sulekhram. M/s. A.S. Corporation had rebutted the statements of traders and brokers and no Director or employee of Sulekhram has admitted clandestine manufacture and removal of goods, there is nothing to indicate that M/s. A.S. Corporation had actually purchased the goods from Sulekhram so as to indicate any connection between Sulekhram and M/s. A.S. Corporation - held that - Revenue has not been able to establish clandestine manufacture and clearance by Sulekhram, as a necessary corollary, it had to be held that penalty could not be imposed upon dealers and suppliers on the allegation of having supplied bogus bills, it cannot be stated that the impugned order of the Tribunal suffers from any legal infirmity so as to warrant interference. No question of law, much less any substantial question of law can be stated to arise out of the impugned order of the Tribunal. The appeals are accordingly dismissed.

Summary

Issues Involved:
1. Justification of CESTAT's observation on the sufficiency and reliability of evidence regarding clandestine removal.
2. Justification of CESTAT's observation on the innocence of the partners of M/s. A.S. Corporation in the duty evasion act.

Detailed Analysis:

1. Justification of CESTAT's Observation on the Sufficiency and Reliability of Evidence Regarding Clandestine Removal:
The Tribunal examined the evidence collected during the investigation, which indicated that M/s. A.S. Corporation had procured fictitious bills from various traders and sold goods to various buyers. The Tribunal noted that M/s. A.S. Corporation had rebutted the statements made by various traders/brokers, maintaining that the goods were purchased from traders to whom payments were made by cheques. The Tribunal found that merely because some traders' registrations were canceled subsequently, it was no ground to assume they were bogus. The Tribunal emphasized that the respondents were not given the opportunity to cross-examine the traders and brokers, whose statements were relied upon by the Revenue, thus rendering these statements inadmissible in evidence. The Tribunal further noted that the mere appearance of the "SULEKHRAM" mark on the TMT Bars could not conclusively establish that the goods were clandestinely cleared from Sulekhram's factory. The Tribunal found that there was no corroborative evidence from the transporters' trip registers to support the Revenue's case. Additionally, the Tribunal noted that the Revenue's case was based on the statements of co-accused without any independent corroborative evidence. The Tribunal concluded that the allegations of clandestine removal were not substantiated by positive and tangible evidence, and thus, the demand and penalties against Sulekhram were set aside.

2. Justification of CESTAT's Observation on the Innocence of the Partners of M/s. A.S. Corporation:
The Tribunal found that the penalty imposed on Shri S.A. Vohra, partner of M/s. A.S. Corporation, under Rule 26 of the Central Excise Rules, 2002, could not be upheld as there was no evidence of clandestine removal and clearance from Sulekhram's factory. The Tribunal also set aside the penalty on Shri Kiritbhai C. Patel, proprietor of M/s. Avantika Steel Suppliers, imposed for arranging bogus bills. The Tribunal referred to the Larger Bench decision in the case of M/s. Steel Tubes of India Ltd. v. CCE, Indore, which held that penalty cannot be imposed where the assessee issues invoices only without the movement of goods. Consequently, the Tribunal set aside the penalties imposed on other traders alleged to have issued invoices without supplying goods.

Conclusion:
The Tribunal's decision was based on a thorough examination of the evidence and the lack of corroborative evidence to support the Revenue's allegations of clandestine removal and clearance by Sulekhram. The Tribunal found that the statements of traders and brokers were inadmissible due to the denial of cross-examination. The Tribunal also noted the absence of any evidence indicating that M/s. A.S. Corporation had purchased goods from Sulekhram. Consequently, the Tribunal set aside the demand and penalties against Sulekhram and other respondents. The High Court upheld the Tribunal's decision, finding no legal infirmity or substantial question of law arising from the Tribunal's order. The appeals were accordingly dismissed.