2016 (12) TMI 1705 - AT - Central Excise

CENVAT credit - inputs - scrap - penalty - Held that - Revenue had not established with sufficient evidences that the appellants have not received cenvatable inputs in their factory. It appears that appellants have purchased both cenvatable and non-cenvatable scrap, as has been stated in the statement recorded under Section 14 of the Director, that they are mainly concerned with receipt of scrap and they take credit on the basis of duty indicated there in the invoices and they are not much concerned with consistency of the scrap. In view of the fact that the assessee is not contesting strongly the reversal of duty made by them, the appellant is entitled to deduct the demand of ₹ 16,18,834/- from the subsequent demand of ₹ 25,57,554/- and they are liable to only the balance demand of ₹ 9,38,720/- in the circumstances. Confiscation - penalty - Held that - in view of the fact that the appellants had reversed the duty in the course of investigation and the whole finding of lower authority is on assumption and presumption, the confiscation and penalty set aside. Appeal allowed in part.

Summary

Issues:
1. Disallowance of Cenvat credit on inputs 'scrap'
2. Sustainability of penalty

Analysis:
Issue 1:
The case involved the disallowance of Cenvat credit taken on scrap inputs by J.G. Sponge & Power (P) Ltd., a manufacturer of ingots. During an inspection, discrepancies were found between the type of scrap in the factory and the invoices for industrial scrap on which duty had been paid. The Director of the company admitted the error and reversed the Cenvat credit. Subsequently, show cause notices were issued proposing disallowance of Cenvat credit, interest, penalty, and confiscation of the scrap. The Additional Commissioner confirmed the demand, penalties, and confiscation. The appeals before the Commissioner (Appeals) upheld the demands and penalties but set aside one penalty on the Director. The appellants contended that the demand was based on assumptions, and the deposit of duty during investigation did not imply admission of ineligible credit. They argued that no investigation was conducted from the input suppliers and that there was no mismatch in raw material consumption. The Tribunal found that Revenue failed to establish with sufficient evidence that the appellants did not receive cenvatable inputs, allowing a deduction in the demand and setting aside penalties and confiscation due to lack of conclusive evidence.

Issue 2:
Regarding the sustainability of penalties, the Tribunal considered the lack of inquiry from scrap suppliers, absence of evidence showing different suppliers for raw material and invoices, and reliance on visual inspection without proper correlation. The Tribunal noted that the appellants purchased both cenvatable and non-cenvatable scrap, as confirmed by the Director's statement. Due to weak contentions against the reversal of duty and lack of conclusive evidence, the Tribunal allowed a partial deduction in the demand and set aside penalties on the company and the Director, emphasizing the absence of strong contestation against the reversal of duty and the reliance on assumptions and presumptions in the lower authorities' findings.

In conclusion, the Tribunal partially allowed the appeals by deducting the demand amount and setting aside penalties and confiscation based on insufficient evidence and reliance on assumptions and presumptions in the lower authorities' decisions.