2019 (2) TMI 1624 - HC - Central Excise

Clandestine removal - shortage of raw material/finished goods - no other corroborative evidences found - weighment done on average basis to alleged shortage of finished goods - HELD THAT - It was alleged that they were using cenvatable inputs as well as non cenvatable inputs but in the impugned order, the authority had not given credence to the fact that the respondent was using cenvatable as well as non cenvatable inputs which had been found short during the course of investigation - Further, in the case of SSIL, the duty had been demanded on both inputs as well as finished goods. With regard to shortage of inputs, it was not held by the Commissioner that the inputs found short had been used in manufacturing of final product by the respondent. Therefore, the duty could not be demanded on the raw material found short during the course of investigation as the same was not manufactured goods by the respondent. The adjudicating authority also failed to prove that the cash recovered was the sale proceeds of clandestine removed goods. Thus, it was held that the seized currency during the course of investigation could not be confiscated without any evidence that the same was the sale proceeds of excisable goods cleared clandestinely. Consequently, the impugned order passed by the Commissioner was set aside and the appeals were allowed. The appellant-revenue has not been able to point out any error or illegality in the findings recorded by the Tribunal warranting interference by this Court. No substantial question of law arises. Appeal dismissed - decided against appellant.

Summary

Issues Involved:
1. Whether the findings in the impugned order are perverse and contrary to law and record.
2. Whether the Tribunal acted illegally and with material irregularity in setting aside the adjudicating authority's order.
3. Whether the Tribunal's order is non-speaking and failed to appreciate the evidence.
4. Whether the Tribunal was justified in dropping the demands raised by the adjudicating authority.
5. Whether the Tribunal's observations on average weighment for duty imposition are perverse.
6. Whether the Tribunal's findings are based on conjectures or surmises and failed to appreciate the complete evidence.
7. Whether the Tribunal acted illegally in holding that there is no corroborative evidence of clandestine removal of goods.
8. Whether the Tribunal failed to consider evidence and statements recorded by the investigating agency.

Detailed Analysis:

1. Perverse and Contrary Findings:
The Tribunal categorically recorded that the demand of duty was confirmed due to shortages of raw material/finished goods and alleged clandestine removal of goods. However, no incriminating documents or corroborative evidence were found during the investigation, except for some statements. The Tribunal found that the duty demand on raw material shortages was unsustainable as duty could only be demanded on manufactured goods, which raw material is not.

2. Illegality and Material Irregularity:
The Tribunal noted that weighment done on an average basis to allege shortages of finished goods was not sustainable without corroborative evidence of clearance without payment of duty. The Tribunal held that the revenue failed to produce such evidence, making the demand unsustainable.

3. Non-Speaking Order and Evidence Appreciation:
The Tribunal observed that the adjudicating authority did not give credence to the fact that the respondent was using both cenvatable and non-cenvatable inputs. The authority also failed to prove that the cash recovered was the sale proceeds of clandestinely removed goods, making the confiscation of currency unsustainable.

4. Justification in Dropping Demands:
The Tribunal found that the demand of duty on raw material shortages was not sustainable as it was not proven that the raw materials were used to manufacture final products cleared without duty. Similarly, the shortage of finished goods was attributed to average weighment, which lacked corroborative evidence of clandestine removal.

5. Observations on Average Weighment:
The Tribunal held that weighment on an average basis to allege shortages was not sustainable without corroborative evidence. The shortage attributed to average weighment was reduced significantly, and the benefit of doubt was given to the appellant.

6. Findings Based on Conjectures or Surmises:
The Tribunal found that the demand against M/s SSSM on account of raw material shortages was not sustainable as there was no evidence that the inputs found short were used in manufacturing final dutiable products. The duty could only be demanded on final manufactured goods, not raw materials.

7. No Corroborative Evidence of Clandestine Removal:
The Tribunal held that the demand against M/s SSCL on account of clandestine removal was not sustainable as there was no corroborative evidence to support the revenue's claim. The Tribunal noted that the statements of Shri Suresh Agarwal were not corroborated with evidence of purchasing goods from Sada Shiv Group.

8. Failure to Consider Evidence and Statements:
The Tribunal found that the adjudicating authority failed to prove that the recovered cash was the sale proceeds of clandestinely removed goods. Consequently, the confiscation of the seized currency was set aside, and the adjudicating authority was directed to release the amount immediately.

Conclusion:
The Tribunal's findings were upheld, and the appeals by the appellant-revenue were dismissed as no substantial question of law arose. The Tribunal's decision to set aside the adjudicating authority's order was based on the lack of corroborative evidence and unsustainable demands on raw material shortages and average weighment.