Custom, Excise & Service Tax Tribunal
Cce, Hyderabad-I vs M/S. Aurobindo Pharma Ltd on 1 May, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: E/750/2008-SM [Arising out of Order-in-Appeal No.28/2008 (H-I)CE dated 30/06/2008 passed by CC& CE(Appeals-I), Hyderabad] For approval and signature: HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER 1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3 Whether Their Lordships wish to see the fair copy of the Order? 4 Whether Order is to be circulated to the Departmental authorities? CCE, Hyderabad-I Appellant(s) Versus M/s. Aurobindo Pharma Ltd. Respondent(s)
Appearance:
Shri A.K. Nigam, Addl. Commissioner(AR) For the appellant Shri G. Prabhakar Sastry, Advocate For the respondent Date of Hearing: 13/02/2015 Date of Decision: CORAM:
HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER Final Order No. / 2015 Per : ARCHANA WADHWA Being aggrieved with the order passed by the Commissioner(Appeals), Revenue has filed the present appeal.
2. As per facts on records, respondent is engaged in the manufacture of bulk drugs. During the month of July 2000, the respondent prepared two waybills for export of 120 kgs. Of Indiavir Sulphate valued at Rs.1.18 crores to M/s. Surya Teja Impex, Singapore, under the claim of rebate. They also prepared a Central Excise invoice No.24 dt. 03/07/2000. As the said order got subsequently cancelled, the appellant cancelled the waybills as also the invoice in question.
3. Subsequent investigations revealed that the invoice No.24 was missing from the invoice book and a photocopy of the same stapled to the book showing clearance of 28 kgs. Of Terbinafine HCL for export. As per the appellant the earlier order was cancelled and invoice No.24 was used for another consignment which was exported on 11/07/2000. The Revenue entertained a view that the invoice No.24 has been used for clearance of goods without payment of duty in the DTA.
4. When the matter came up before the Commissioner(Appeals), he observed as under:-
5. Coming to the merits of the case, the appellants have contended that they had an order for export of 120 kgs. Of Indinavir Sulphate to Singapore and accordingly delivery challan and waybill dated 03.07.2000 were prepared in advance (indicating 100 kgs. Under batch no.011062000 and 20 kgs. Of batch no.012062000) and the vehicle number was also mentioned as they had a regular contract vehicle; as per the running serial number of invoice during that period, invoice no.24 was to have been used and hence this number was mentioned in the delivery challan; subsequently, the export order got cancelled and hence the consignment never left the factory premises; however due to the ignorance of the dealing assistant, the entry in the stock register relating to the dispatch was scored out; the invoice no.24 was subsequently used for the dispatch of a different consignment of drug i.e. Terbinafine HCL on which they were even sanctioned rebate of the duty paid. They have further contended that the 120 kgs. Of impugned goods was subsequently exported vide invoice no.28 dt. 12.07.2000, copy of which was furnished. On perusal of the invoice, it is seen that it included 100 kgs. Pertaining to batch no.011062000, 25 kgs. pertaining to batch no.012062000 and 125 kgs. of batch no.016062000 totaling to 250 kgs. They have also furnished the copies of delivery challan dated 03.07.2000 and certificates of analysis of the drug in support of their contention that the 120 kgs. of impugned goods, which was supposed to have been exported on 03.07.2000, was actually exported vide invoice no.28 dt. 12.07.2000. On the other hand, the lower authority has arrived at the conclusion that the impugned goods were removed clandestinely based on the following factors a) waybill dt. 03.07.2000, b) delivery challan dt. 03.07.2000, c) mention of the invoice no.24 dt. 03.07.2000 on these documents and d) the entry and subsequent scoring off in the RG1 register. Though the appellants have tried to make clear their stand, the lower authority has stuck to his theory of clandestine removal without bothering to adduce any corroborative evidence. It is true that the appellants should not have made any entry in the first place against the removal column in the RG1 register when the goods were still lying in the factory premises. By subsequently scoring of the entry, they have only added fuel to the suspicion. However, one cannot conclude that the appellants had cleared the impugned goods clandestinely, based on this factor alone. This view of mine finds support from the decision of the Honble Tribunal in the case of Grauer & Well (India) Ltd. Vs. CCE, Meerut [2000 (116) ELT 618 (Tri.)] wherein it was held that Accountal of goods Clandestine removal Invoice cancelled by appellant on account of lack of funds for payment of duty and manufactured goods available in filteration tanks Clandestine removal not established in absence of any positive evidence Rules 9(2) and 173G(2)(ii) of Central Excise Rules, 1944. The department has produced no corroborative evidence of any sort. It is needless to reiterate that charges of clandestine clearances have to be necessarily established by cogent, convincing and tangible evidences and obviously cannot be based on assumptions and presumptions. It is well settled that the burden of proving clandestine clearance is upon the department and is required to be discharged by production of sufficient and affirmative evidence, which is clearly lacking in this case. In the absence of the same, I see no reason for not believing the version of the appellants. Hence I extend the benefit of doubt to the appellants.
Being aggrieved with the above order of the Commissioner(Appeals), Revenue has filed the present appeal.
5. As is seen from the reproduced portion, the appellant authority has observed that there is no positive evidence of clearance of their goods and the original adjudicating authority has confirmed the demand on the basis of doubt. In the appeal memorandum also, the Revenue has not referred to or produced any evidence showing either the procurement of the inputs or the person to whom the said goods have been cleared or the receipt of payment for the said goods etc. In the absence of any such evidence, the Commissioner(Appeals) has rightly concluded that the demand cannot be confirmed on the charges of clandestine activity. I find no infirmity in the said order of the Commissioner(Appeals) and accordingly reject the Revenues appeal.
(Pronounced on ..) ARCHANA WADHWA JUDICIAL MEMBER Raja.
5