2009 (10) TMI 769 - AT - Central Excise

Clandestine removal - demand based on presumption - Held that - no cogent evidence having been brought to record to suggest deal of all the three parties with intimate connection or nexus of each other. This proves that the proceeding has been ill founded - There cannot be any presumption or suspicion for an arbitrarily taxation without any cogent evidence being brought to record - appeal dismissed - decided against Revenue.

Summary

Issues involved:
1. Tribunal's direction to consider evidence afresh
2. Evaluation of statements of witnesses
3. Allegations of clandestine removal
4. Validity of retraction of statements
5. Lack of evidence against the assessee
6. Cross-examination and evidence presented
7. Lack of cogent evidence for tax imposition

1. Tribunal's direction to consider evidence afresh:
The Tribunal had directed the ld. Appellate Authority to reevaluate the evidence involving statements of key witnesses. The Tribunal emphasized the importance of a combined reading of statements to reach a conclusion. The ld. Appellate Authority, following this direction, examined the issue and found discrepancies in the statements of witnesses, ultimately leading to the Appeals of the assessee being allowed.

2. Evaluation of statements of witnesses:
The Revenue argued that a statement by Shri Manohar Lal indicated his involvement in a transaction linking various parties. The ld. Authority found Shri Manohar Lal to be crucial in establishing the connection between the parties. The Revenue contended that the cross-examination did not support the Appellant's position, leading to the grievance that the ld. Commissioner's decision favoring the assessee was incorrect.

3. Allegations of clandestine removal:
The Revenue alleged clandestine removal based on the realization of a specific amount by Shri Manohar Lal on behalf of another party. However, the defense argued that there was no concrete evidence to prove clandestine removal, as no statements were recorded from certain relevant parties. The Tribunal highlighted the lack of evidence establishing a direct nexus between the seized money and clandestine activities, emphasizing that suspicion alone cannot substitute for proof.

4. Validity of retraction of statements:
The Revenue contended that the retraction of a statement after a significant time lapse should not be considered valid. This argument was supported by referencing a previous Tribunal decision.

5. Lack of evidence against the assessee:
The defense pointed out the absence of recorded statements from key parties and highlighted that explanations provided by the accused were not refuted. This lack of concrete evidence against the assessee led to the argument that no clandestine removal was proven by the Revenue.

6. Cross-examination and evidence presented:
Both sides presented their arguments, and the records were extensively reviewed. The Tribunal noted that while questionable conduct was evident, the lack of substantial evidence connecting the parties in the alleged transactions weakened the Revenue's case. The Tribunal emphasized the importance of concrete evidence over mere suspicion or assumptions.

7. Lack of cogent evidence for tax imposition:
Ultimately, the Tribunal dismissed Revenue's appeals, citing the lack of cogent evidence to support the imposition of taxes. The Tribunal found the adjudication unsustainable in the eyes of the law due to insufficient evidence and lack of a strong case presented by the Revenue. The Tribunal emphasized that suspicion alone cannot lead to taxation without concrete proof, and the decision of the ld. Commissioner in favor of the assessee was upheld.