2025 (5) TMI 855 - AT - Central Excise

Clandestine removal - demand baed on statements recorded and documents seized during investigation - admissible evidences or not - HELD THAT - In this case the case of clandestine removal has been booked against the appellant on the basis of certain loose papers recovered during the course of investigation on the basis of certain hard disk containing in the Computer Process Unit were recovered during the course of investigation and various statements cannot be recorded during the course of investigation. The charge of clandestine removal of goods is a serious charge and to prove clandestine removal of goods this Tribunal in the case of Arya Fibres Pvt. Ltd. versus Commissioner of Central Excise Ahmedabad II 2013 (11) TMI 626 - CESTAT AHMEDABAD has laid down the test to verify the alleged clandestine removal of goods and it was held that There should be corroborative evidence by way of statements of purchasers distributors or dealers record of unaccounted raw material purchased or consumed and not merely the recording of confessional statements. It is found that in this case the name of the buyers are very much available with the Revenue but no investigation was conducted with the alleged buyers by the Revenue to prove their case. Moreover the name of transporters were also mentioned in the invoices no investigation was conducted at the end of the transporters whether they have transported the goods or not. Further to manufactures such a huge quantity of goods cleared without payment of duty the production capacity of the appellant is required to be ascertained. Moreover for manufacture of such a huge quantity how much raw material procured by the appellant and from where how much electricity has been consumed by the appellant how much labour charges have been paid by the appellant no investigation was done to that effect. All these things are required to allege clandestine removal of goods. Further how the payments of clandestine removal of goods is received by the appellant and how the payment of raw material made by the appellants. These efforts have not been made by the Revenue. Moreover the case has been booked on the basis of kacha receipt during the course of adjudication and various statements recorded during the course of investigation. The statements recorded during the course of investigation are not admissible evidence to allege clandestine removal of goods. The charge of clandestine removal of goods on the basis of documents recovered during the course of investigation without corroboration are not relied upon documents - In the absence of any corroborative evidence to allege clandestine removal of goods it is found that charge of clandestine removal of goods is not sustainable against the appellant and the same is on the assumption and presumptions therefore the duty cannot be demanded on the basis of assumptions and presumptions. Except the admitted demand by the appellant rest of the demand is dropped. Consequently no penalties imposable on the appellant. The appellant is required to pay admitted amount of duty along with interest if not already paid. The currency seized during the course of investigation is required to be released to the appellant. Conclusion - i) Clandestine removal must be proved by tangible corroborated evidence not mere assumptions or internal records. ii) Statements recorded during investigation are inadmissible without examination and cross-examination under Section 9D. iii) Demand of duty interest and penalty cannot be sustained on the basis of uncorroborated evidence and procedural lapses. iv) Admitted and paid duty amounts must be accepted but unsubstantiated additional demands must be dropped. Appeal disposed off.

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Tribunal were:

(a) Whether the appellants are liable to pay duty on the alleged clandestine removal of excisable goods during the period 28.10.2010 to 06.07.2011;

(b) Whether the evidence collected, including seized documents, electronic data, and statements recorded under Section 14 of the Central Excise Act, 1944, sufficiently establishes clandestine manufacture and removal of goods without payment of duty;

(c) Whether the statements recorded during the course of investigation are admissible and reliable evidence in the absence of examination and cross-examination under Section 9D of the Central Excise Act;

(d) Whether the demand of duty, interest, and penalty imposed on the appellants is sustainable in the light of the evidence and legal principles governing clandestine removal;

(e) Whether the seized currency amounting to Rs. 19,00,000/- can be appropriated against the duty demand;

(f) The applicability and sufficiency of corroborative evidence required to prove clandestine removal of excisable goods;

(g) The extent to which the Revenue's investigation was adequate, including examination of buyers, transporters, raw material procurement, production capacity, electricity consumption, and payment trails.

2. ISSUE-WISE DETAILED ANALYSIS

Issue (a) and (b): Liability for duty on clandestine removal and sufficiency of evidence

The legal framework governing the levy of duty on clandestine removal is rooted in the Central Excise Act, 1944, and the Central Excise Tariff Act, 1985. The Revenue initiated search and seizure operations based on intelligence, recovering physical documents, electronic data (including HDDs and soft copies of stock registers, excise returns, and accounting data), and cash currency. Statements under Section 14 were recorded from key personnel admitting to clandestine removals.

However, the Tribunal referred extensively to the test laid down in the precedent decision of Arya Fibres Pvt. Ltd. versus Commissioner of Central Excise, which enumerates fundamental criteria to establish clandestine manufacture and clearance. These include tangible evidence such as excess raw materials beyond statutory records, actual removal of unaccounted goods, discovery of such goods outside the factory, sales to identified parties, receipt of sale proceeds, disproportionate electricity usage, statements of buyers, proof of transportation, and linkage between documents and factory activities.

The Court emphasized that reliance solely on private/internal records such as diaries or notebooks, or confessional statements without corroborative evidence, is insufficient. It must be shown that clandestine removal is established beyond mere assumptions or inferences.

In the present case, though the Revenue recovered documents and statements indicating clandestine removals, there was a conspicuous absence of corroborative investigations. The Revenue did not probe the alleged buyers named in the seized documents, nor did it investigate the transporters identified in invoices to verify actual transportation of goods. Further, no inquiry was made into the appellant's production capacity, raw material procurement, electricity consumption, or labor expenses, all of which are critical to substantiate clandestine manufacture of large quantities.

Thus, the Court found the evidence inadequate to conclusively establish clandestine removal beyond assumptions and presumptions. The Revenue's case was based on "kacha" (unverified) receipts and statements recorded during investigation without further verification.

Issue (c): Admissibility and reliability of statements recorded under Section 14 and Section 9D of the Central Excise Act

The Tribunal noted the binding precedent from the Punjab & Haryana High Court, which held that statements recorded during investigation must be tested under Section 9D of the Central Excise Act, 1944. This requires examination-in-chief and cross-examination of the witnesses to ensure reliability and fairness.

In this case, the statements recorded under Section 14 were not subjected to such procedural safeguards. The appellants were not afforded the opportunity to cross-examine the witnesses, rendering the statements inadmissible as evidence for establishing clandestine removal. This procedural lapse weakened the Revenue's evidentiary foundation.

Issue (d): Sustainability of demand of duty, interest, and penalty

Given the inadequacy of corroborative evidence and the procedural infirmity regarding statements, the Tribunal held that the demand of duty, interest, and penalty based on such evidence could not be sustained. The charge of clandestine removal was not proven on a preponderance of evidence but rested on assumptions and presumptions, which is impermissible.

However, the appellants had admitted and paid an amount of Rs. 68,08,978/- as duty on clandestine removals based on their own calculations from the seized daily sheets. The Tribunal allowed recovery of this admitted amount along with interest, if not already paid, but set aside the balance demand and penalties.

Issue (e): Appropriation of seized currency against duty demand

The appellants contended that the balance duty demand could be adjusted against the seized currency of Rs. 19,00,000/-. The Tribunal noted this submission and directed the release of the seized currency to the appellants, implying that no further appropriation was permissible given the dismissal of the additional demand.

Issue (f) and (g): Adequacy of Revenue's investigation and requirement of corroborative evidence

The Tribunal underscored the necessity for a comprehensive investigation that extends beyond recovery of internal documents and statements. It highlighted the importance of verifying the identities and statements of buyers and transporters, as well as examining the appellant's procurement and production records, electricity consumption, and payment flows to establish clandestine manufacture and removal.

The absence of such investigative steps rendered the Revenue's case incomplete and legally unsustainable. The Tribunal reiterated that clandestine removal is a serious charge requiring solid, corroborated evidence rather than mere inferences.

3. SIGNIFICANT HOLDINGS

The Tribunal's legal reasoning included the following crucial observations, preserved verbatim:

"The charge of clandestine removal of goods is a serious charge and to prove clandestine removal of goods, this Tribunal in the case of Arya Fibres Pvt. Ltd. versus Commissioner of Central Excise, Ahmedabad - II... has laid down the test to verify the alleged clandestine removal of goods, which is as follows :-

'(i) There should be tangible evidence of clandestine manufacture and clearance and not merely inferences or unwarranted assumptions;

(ii) Evidence in support thereof should be of :

(a) raw materials, in excess of that contained as per the statutory records;

(b) instances of actual removal of unaccounted finished goods (not inferential or assumed) from the factory without payment of duty; ...'"

"In fact, this Bench has considered some of the case-law on the subject in Centurian Laboratories v. CCE, Vadodara... The crux of the decision is that reliance on private/internal records maintained for internal control cannot be the sole basis for demand. There should be corroborative evidence by way of statements of purchasers, distributors or dealers, record of unaccounted raw material purchased or consumed and not merely the recording of confessional statements."

"The statements recorded during the course of investigation are required to be tested in terms of Section 9D of the Central Excise Act, 1944... The statements recorded during the course of investigation are not admissible evidence to allege clandestine removal of goods."

"In the absence of any corroborative evidence to allege clandestine removal of goods, we find that charge of clandestine removal of goods is not sustainable against the appellant and the same is on the assumption and presumptions, therefore, the duty cannot be demanded on the basis of assumptions and presumptions."

Core principles established include:

- Clandestine removal must be proved by tangible, corroborated evidence, not mere assumptions or internal records;

- Statements recorded during investigation are inadmissible without examination and cross-examination under Section 9D;

- The Revenue must conduct a thorough investigation, including inquiries with buyers, transporters, and examination of production and raw material consumption;

- Demand of duty, interest, and penalty cannot be sustained on the basis of uncorroborated evidence and procedural lapses;

- Admitted and paid duty amounts must be accepted, but unsubstantiated additional demands must be dropped;

- Seized currency not legitimately appropriated against duty demands must be released.

Final determinations:

- The appellants are liable to pay the admitted amount of duty along with interest, if unpaid;

- The balance demand of duty, interest, and penalties is set aside for lack of sufficient evidence and procedural irregularities;

- The seized currency of Rs. 19,00,000/- shall be released to the appellants;

- The appeals are disposed of accordingly.

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