2011 (5) TMI 599 - AT - Central Excise

Clandestine removal - Search and seizure - Confiscation - M/s. Jaidev Alloys Pvt. Limited has availed the cenvat credit in respect of the ship breaking plates but have diverted the same to their other two re-rolling mills - obtaining low cost scrap from the open market from unorganised sources and have used the same in the manufacture of MS Ingots - Held that - There is no evidence locating any supplier or transporter of such a huge material. The assessees have accounted for all the raw materials in their statutory records and have shown the production of MS Ingots from the same. No evidence worth mentioning stands produced by the Revenue to rebut the entries made in the statutory records. Even at the time of drawing Panchnama in the factory of M/s. Jaidev Alloys Pvt. Limited, ship breaking scrap was found in their premises. The presence of the said scrap derails the entire case of the Revenue that such scrap can never be used in the manufacture of MS Ingots. Shri J.C. Patel appearing for the respondents have clarified that Shri Vijay Garg in his statement has specifically clarified, in answer to questions put to him that plates obtained by ship breaking can be used for melting purposes. He has further clarified that all the plates are of not good quality and it is only where the plates are of lower value that the same are used for melting purposes, whereas the plates supplied to re-rolling mills are of higher value. In the absence of any alternative source of procurement of raw materials, no reason to upset the findings of the adjudicating authority that presumptions cannot be made the base for making a charge of diversion of huge quantity of raw material for continuous period of four years and substituting the same with market scrap. After all M/s. Jaidev Alloys Pvt. Limited were paying duty on their final products and Revenue has not been able to show as to how such huge quantity of final quantity of final product were being manufactured by them, if the scrap shown to have been received by them, was not actually received and there was no other alternative source of procurement - Decided in favour of the assessee

Issues Involved:
1. Alleged diversion of raw materials by M/s. Jaidev Alloys Pvt. Limited.
2. Clandestine removal of CTD Bars by M/s. Gujarat Steels Pvt. Limited and M/s. Sanjay Ispat Pvt. Limited.
3. Validity of weighment and inventory records.
4. Evidentiary value of confessional statements.
5. Alleged under-valuation and modvat credit availed by M/s. Jaidev Alloys Pvt. Limited.

Issue-Wise Detailed Analysis:

1. Alleged Diversion of Raw Materials by M/s. Jaidev Alloys Pvt. Limited:
The Revenue alleged that M/s. Jaidev Alloys Pvt. Limited procured ship-breaking raw materials but diverted them to their sister units, M/s. Gujarat Steels Pvt. Limited and M/s. Sanjay Ispat Pvt. Limited, instead of using them for manufacturing MS Ingots. The Commissioner found no evidence to support this claim, noting that statutory records did not show any discrepancies. The adjudicating authority also observed that the allegations were based on assumptions without concrete evidence, such as identifying suppliers or transporters of the alleged diverted materials. Consequently, the modvat credit claimed by M/s. Jaidev Alloys Pvt. Limited was upheld.

2. Clandestine Removal of CTD Bars by M/s. Gujarat Steels Pvt. Limited and M/s. Sanjay Ispat Pvt. Limited:
The Revenue claimed that M/s. Gujarat Steels Pvt. Limited and M/s. Sanjay Ispat Pvt. Limited clandestinely removed CTD Bars manufactured from unaccounted ship-breaking raw materials. However, the Commissioner noted that the shortages and excesses of raw materials had already been addressed in an earlier show cause notice, which was vacated by the Assistant Commissioner. The Commissioner found no new evidence to support the allegations of clandestine removal and upheld the findings of the earlier order.

3. Validity of Weighment and Inventory Records:
The Commissioner questioned the feasibility of the weighment process, which allegedly involved 34 trips per hour, deeming it impracticable. The Revenue's appeal argued that multiple tractor trailers were used, but the Commissioner maintained that the weighment records were not reliable. The adjudicating authority emphasized that statutory records, which were regularly audited, took precedence over the disputed weighment records.

4. Evidentiary Value of Confessional Statements:
The Commissioner observed that the confessional statements made by representatives of the involved companies were retracted and not corroborated by independent evidence. The adjudicating authority preferred documentary evidence over retracted statements, noting that statutory records were consistent and unchallenged. The Revenue's appeal cited case law to argue the admissibility of such statements, but the Commissioner found no corroborative evidence to support the confessions.

5. Alleged Under-Valuation and Modvat Credit Availed by M/s. Jaidev Alloys Pvt. Limited:
The show cause notice alleged that M/s. Jaidev Alloys Pvt. Limited availed modvat credit on ship-breaking plates while using lower-cost scrap for manufacturing MS Ingots. The Commissioner dismissed this allegation, finding no evidence of alternative scrap procurement or under-valuation. The statutory records showed proper accounting of raw materials and production, and the presence of ship-breaking scrap in the factory supported the company's claims. The adjudicating authority concluded that the modvat credit could not be denied.

Conclusion:
The Commissioner upheld the findings of the earlier order, rejecting the Revenue's appeals. The allegations of raw material diversion, clandestine removal, and under-valuation were found to be unsubstantiated. The statutory records were deemed reliable, and the confessional statements were not given precedence due to lack of corroborative evidence. The appeals filed by the Revenue were dismissed, and the modvat credit availed by M/s. Jaidev Alloys Pvt. Limited was upheld.

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