2012 (10) TMI 377 - AT - Central Excise

Demand of duty and penalty - clandestine production and removal alleged that Computer printouts showing clearance of SS Flats were seized Held that - Evidence of one of co-noticee cannot be relied upon against another co-noticee, unless it is corroborated by independent evidence - merely because incriminating oral evidence is recorded the same is not sufficient to establish a serious charge of clandestine production and removal of excisable goods - computer printouts are hit by the provisions of Section 36B(2) of the Central Excise Act. The genuineness of other loose slips is required to be established with corroborative evidence - duty demand on SS Flats is misdirected against them as they have admittedly never manufactured SS Flats but they are the manufacturers of SS Ingots only and there is no duty demand on SS Ingots - order set aside and matter remanded to the Commissioner for de novo adjudication

Issues Involved:
1. Violation of principles of natural justice.
2. Duty demand on SS Flats manufactured by re-rollers.
3. Capacity of M/s. Jindal to manufacture SS Ingots.
4. Reliance on statements and documents seized.
5. Cross-examination of witnesses.
6. Penal actions against co-noticees.

Analysis of the Judgment:

Violation of Principles of Natural Justice:
The Tribunal observed that the impugned order suffered from a violation of the principles of natural justice. The Commissioner did not provide a fair opportunity to the parties, especially with regard to the capacity of production and the refusal of cross-examination of various co-noticees and others. The Tribunal emphasized that cross-examination is necessary to test the veracity of the statements relied upon in the order.

Duty Demand on SS Flats Manufactured by Re-rollers:
M/s. Jindal contended that the duty demand on SS Flats was erroneous as they were only manufacturers of SS Ingots and not SS Flats. They argued that the duty liability on SS Flats should fall on the re-rollers, as M/s. Jindal had not undertaken to discharge the duty on SS Flats. The Tribunal left this issue open for reconsideration by the Commissioner during the remand proceedings.

Capacity of M/s. Jindal to Manufacture SS Ingots:
M/s. Jindal argued that they did not have the capacity to manufacture the alleged quantity of SS Ingots. They presented a Chartered Engineer's Certificate indicating their maximum production capacity. The Tribunal noted that the Commissioner had not properly appreciated the facts and had erroneously assumed certain technical details about the furnaces and transformers. The Tribunal directed the Commissioner to take a holistic view of the production capacity, considering technical literature and expert opinions.

Reliance on Statements and Documents Seized:
The Tribunal found that the Commissioner had relied on statements and documents seized from the premises of a third party without allowing cross-examination. It was noted that evidence from co-noticees could not be relied upon against another co-noticee unless corroborated by independent evidence. The Tribunal emphasized the need for corroborative evidence to establish the charge of clandestine production and removal of excisable goods.

Cross-examination of Witnesses:
The Tribunal directed that cross-examination of the following individuals was necessary:
- Shri S.K. Sahu
- Four Re-rollers
- Cutters of the SS Flats
- Various scrap dealers
- Shri Ajay Gupta

The Tribunal highlighted that cross-examination is crucial to test the veracity of statements and that the Commissioner should not have denied it without justification.

Penal Actions Against Co-noticees:
The Tribunal noted that penal actions were imposed on various co-noticees under Rule 26 of the Central Excise Rules, 2002. The Tribunal emphasized that the evidence against co-noticees must be corroborated by independent evidence and that the statements of co-noticees needed to be tested through cross-examination.

Conclusion:
The Tribunal set aside the impugned order and remanded the matter to the Commissioner for de novo adjudication. The Commissioner was directed to allow cross-examination of the relevant witnesses, consider the technical literature on the production capacity, and re-evaluate the duty demand on SS Flats. The appeals were allowed by way of remand, and the stay applications were also allowed. The miscellaneous application for adducing additional evidence was dismissed as not required.

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