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2017 (10) TMI 1022 - AT - Central ExciseClandestine removal - shortages and excesses of stock/finished goods - Held that - the Adjudicating Authority failed to exercise powers vested in him for the purpose of ensuring the attendance of witnesses in spite of all the powers of ensuring attendance of witnesses as are provided in the Code of Civil Procedure, 1908 are vested in the Adjudicating Authority - It is further matter of fact on record that the respondents have manufactured final products, out of the raw materials alleged to be not received, and removed the finished products on payment of duty and further filed tax returns for the same, and such returns are not questioned by the Revenue. Also, the Revenue have failed to establish the source of raw material, in the absence of non-receipt of inputs on which Cenvat credit was taken, leads to the conclusion that the entire case of Revenue is on the basis of presumptions - Further, there is no allegation that the payments made by account payee cheques to the suppliers have been received back by the respondent. Appeal dismissed - decided against Revenue.
Issues Involved:
1. Demand of ?19,177/- on alleged shortage of inputs towards disallowance of Cenvat credit. 2. Demand of ?11,953/- on alleged clandestine removal of finished goods. 3. Demand of ?38,55,429/- as wrongly availed and utilized Cenvat credit. 4. Imposition of penalties on Respondent No.1, Respondent No.2, and Respondent No.3 under various sections and rules. Issue-wise Detailed Analysis: 1. Demand of ?19,177/- on Alleged Shortage of Inputs Towards Disallowance of Cenvat Credit: The Commissioner of Central Excise & Customs (Appeals), Kanpur, upheld the demand of ?19,177/- for the alleged shortage of inputs. The shortage was determined through eye estimation, which was deemed doubtful. However, the demand was upheld based on the admission of the Director. The Tribunal found no error in this decision and maintained the penalty of ?19,177/- on Respondent No.1. 2. Demand of ?11,953/- on Alleged Clandestine Removal of Finished Goods: The demand of ?11,953/- was based solely on the statement of the Authorized Signatory/Director without any corroborative positive tangible evidence. The Commissioner (Appeals) set aside this demand, observing that the alleged shortage being consumed in the manufacture of finished goods was a mere assumption without corroborative evidence. The Tribunal agreed with this observation and dismissed the Revenue's appeal regarding this demand. 3. Demand of ?38,55,429/- as Wrongly Availed and Utilized Cenvat Credit: The major issue involved the demand of ?38,55,429/- for allegedly wrongly availed and utilized Cenvat credit. The Commissioner (Appeals) noted that the receipt of inputs under dispute was not denied by the Revenue and that the inputs were utilized for production and the finished goods were cleared on payment of duty. The Tribunal found that the Adjudicating Authority failed to ensure the attendance of witnesses for cross-examination, as directed in the earlier round of litigation. The Tribunal noted that the respondents had regularly manufactured and cleared excisable goods on payment of duty, and their returns were never questioned by the Revenue. The Tribunal concluded that the case of the Revenue was based on presumptions and dismissed the demand of ?38,55,429/-. 4. Imposition of Penalties: The penalties imposed on Respondent No.1, Respondent No.2, and Respondent No.3 were also addressed. The Commissioner (Appeals) maintained the penalty of ?19,177/- on Respondent No.1 but set aside the penalties on Respondent No.2 and Respondent No.3, observing that there was no material suggesting that they had dealt with excisable goods liable for confiscation. The Tribunal upheld this decision, noting the lack of evidence against Respondent No.2 and Respondent No.3. Conclusion: The Tribunal dismissed the appeals of the Revenue, upholding the decision of the Commissioner (Appeals) to set aside the demands and penalties, except for the demand and penalty of ?19,177/- on Respondent No.1. The Tribunal emphasized the failure of the Adjudicating Authority to ensure the attendance of witnesses for cross-examination and the lack of corroborative evidence to support the Revenue's claims. The respondent-assessee was entitled to consequential benefits in accordance with the law.
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