2016 (3) TMI 1170 - AT - Central Excise

Clandestine removal - CC Copper Rod - interest - penalty - Held that - the appellant is not going to avail any benefit by clearing CC Copper Rod clandestinely. In fact if the appellant entered the CC Copper Rods in statutory records and clearing by payment of duty only in that circumstance the appellant could availed double benefit of duty - the charge of the clandestine removal of goods is not sustainable - appeal allowed - decided in favor of appellant.

Summary

Issues:
Appeal against duty demand due to clandestine removal, interest, and penalty.

Analysis:
The appellant, engaged in manufacturing Enameled Copper Wire and CC Copper Rod, faced a duty demand due to a shortage of 15770 kgs. of CC Copper Rod found during a search. The appellant explained that these rods were used internally for manufacturing and that entries were not made in statutory records daily. The appellant argued that no effort was made by the department to prove clandestine removal. The appellant contended that the charge was unsustainable due to lack of evidence. The appellant also clarified an error in the date of entry in statutory records. The ld. Consultant emphasized the absence of mala fides and the captive use of CC Copper Rods for manufacturing Enameled Copper Wire.

The ld. AR supported the findings in the impugned order, but the Tribunal found that the charge of clandestine removal was not sustainable. The Tribunal noted that no efforts were made to verify the internal use of CC Copper Rods or to visit the factory. The Tribunal highlighted that the appellant, located in Jammu & Kashmir and availing an exemption, would not benefit from clandestine removal. The Tribunal referenced a previous case to emphasize the need for certain tests to prove clandestine removal, which were lacking in this case. Consequently, the Tribunal set aside the impugned order and allowed the appeal with any consequential relief.

In conclusion, the Tribunal ruled in favor of the appellant, finding the charge of clandestine removal unsustainable due to lack of corroborative evidence and failure to meet the necessary tests. The appellant's explanation regarding the internal use of CC Copper Rods for manufacturing Enameled Copper Wire, along with the absence of mala fides, played a crucial role in the Tribunal's decision to set aside the duty demand, interest, and penalty imposed.