2018 (8) TMI 1875 - HC - Central Excise

Clandestine removal - inputs on which the assessee had availed Modvat credit - HELD THAT - Modvat credit demand is based on the difference between the consumption of aluminum wire rods calculated by the departmental officers based on the approximate mass per kilometer (Km.) of various types of aluminum alloys standard conductors given in the ISI standard and the consumption of aluminum wire rod as recorded by the assessee company in its Central Excise records. For estimating the actual consumption of the aluminum wire rods the departmental officers have calculated the weight of the aluminum conductors manufactured by the assessee during each financial year based on the approximate mass in per Kms. given in the Table 2 of ISI standard IS 398/1994 for the conductors of various diameters. Merely on the basis of the approximate weight of wire in terms of Kg. per Km. for different types of aluminum conductors given in the ISI standard the allegation of clandestine removal of Modvat credit availed aluminum wire rods could not be made - Learned Counsel for 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. Appeal dismissed.

Summary

Issues:
- Interpretation of Section 35G of the Central Excise Act, 1944
- Allegation of clandestine removal of raw material
- Modvat credit demand and calculation discrepancies
- Applicability of legal precedents on duty evasion

Interpretation of Section 35G of the Central Excise Act, 1944:
The judgment involved CEA Nos. 56 and 71 of 2015, addressing identical issues. CEA No. 56 of 2015 was filed by the appellant-revenue under Section 35G of the Central Excise Act, 1944. The respondent, engaged in manufacturing aluminum conductors, was suspected of clandestinely diverting raw materials. The officers found discrepancies during a visit, leading to statements from key individuals admitting to evasion. The Tribunal upheld duty demands on certain items but set aside a substantial demand. The Tribunal's decision was challenged by the revenue.

Allegation of Clandestine Removal of Raw Material:
The case revolved around the alleged clandestine removal of aluminum wire rods by the respondent. The investigation revealed discrepancies in the consumption of raw materials recorded by the company and calculated by departmental officers. The Tribunal noted that the approximate weight figures used for calculations were not entirely accurate. Relying on the precedent set by the Apex Court in Oudh Sugar Mills v. Union of India, the Tribunal emphasized the need for tangible evidence to support allegations of duty evasion through clandestine removal. The Tribunal set aside the substantial demand and penalty imposed on the respondent's company and its Managing Director, citing lack of concrete evidence.

Modvat Credit Demand and Calculation Discrepancies:
The Modvat credit demand of Rs. 91,57,546/- against the respondent was contested based on discrepancies in the calculation methodology used by departmental officers. The Tribunal highlighted that the weight figures provided in the ISI standard were approximate and not definitive. It was observed that the consumption of aluminum wire rods as per the company's records did not align with the maximum possible consumption based on the ISI standard. Consequently, the Tribunal ruled that the allegation of clandestine removal based solely on these calculations was not sustainable, echoing the principles established in the Oudh Sugar Mills case.

Applicability of Legal Precedents on Duty Evasion:
The judgment extensively referenced the Oudh Sugar Mills case to emphasize the importance of tangible evidence in proving duty evasion through clandestine removal. The Tribunal's decision to set aside the Modvat credit demand and penalty was based on the lack of concrete proof supporting the allegations. The revenue's arguments failed to demonstrate any errors in the Tribunal's findings, leading to the dismissal of the appeals. The judgment clarified that individual fact situations dictate the applicability of legal precedents, highlighting the specific circumstances of each case.

In conclusion, the High Court of PUNJAB & HARYANA upheld the Tribunal's decision, dismissing the appeals as no substantial question of law arose. The judgment underscored the necessity of tangible evidence in proving duty evasion allegations and emphasized the importance of accurate calculations and legal precedents in such cases.