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2012 (2) TMI 417 - AT - Central ExciseClandestine removal of goods - Detention of trucks loaded with M.S. Rod of M/s. J.M.D. weighing 15 MT and 14.99 MT - Held that:- there are three similar statements have been deposed by the both drivers which were contradictory to each other. I find that their second interrogatory statement is in complete contradiction of their first interrogatory statement and their third interrogatory statement is a complete contradiction of their second interrogatory statement. Undoubtedly the statement made U/s 14 of the Central Excise Act, 1944, has an evidentiary value, but if there is any contradiction among them, it needs further corroboration. The lower adjudicating authority has wrongly considered and appreciated the statement, dated 1-8-2008 of drivers, who deviated from their previous statement. Merely gross resemblance in distance and time taken in travelling to reach the loading place would not be incriminatory fact in absence of its specific and tangible corroboration. Non-production of duty-paying document is not at all incriminatory fact on their part. Hence I hold that seized 29.99 MT MS bars is not liable for confiscation nor trader and its proprietor are liable for penalty U/s 11AC of the C. Ex. Act, 1944 read with Rule 25 & 26 of the Central Excise Rules. Moreover, in view of the discussion as above, as Demand of Central Excise Duty upon seized 29.99 NT MS bars has been found to be unsustainable, the appeals of M/s. Durga Rai Vijay Kumar of Samaur Bazar (UP) and its proprietor succeeds on merit. Hence technical issues, like time bar and jurisdiction of demand notice not being discussed. When the core issue of clandestine removal from JMD factory is not established, the question of confiscation of goods and imposition & penalty on the appellants does not arise. Where allegation of violation of Central Excise Act is not established, then subsequent imposition of fine or penalty or confiscation of goods is of no consequence. Invocation of Sec. 11AC of Central Excise Act is not sustainable in law if allegation of fraud, suppression of facts and misstatement are not proved to the contrary - Department could not produce any evidence contrary - Decided against Revenue.
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