2017 (11) TMI 697 - AT - Central Excise

Clandestine removal - Revenue in the present appeals has argued that M/s Jindal had the capacity to manufacture S.S. Ingots much more what has been certified by the Chartered Engineer - It is the case of Revenue that Sh. S. K. Sahu was an employee of M/s Jindal and the confidante of Sh. Vinod Jindal, Director of M/s Jindal Nickel & Alloys Limited and was being paid remuneration to maintain the accounts of clandestine clearances in his computer. Held that - we have perused the invoice issued by M/s Inductotherm (India) Pvt. Ltd., for the induction furnace as well as the clarification issued by the manufacturer wherein it has been clearly stated that only one crucible can be used for production at a time and not both. This clearly proves that the Revenue s projection of the production capacity is hugely inflated. The claim of M/s Jindal is reasonable inasmuch as they are not liable for payment of excise duty on the quantity of S.S. Flats cleared by the job workers, over and above the quantity manufactured making use of the ingots received from the appellant on job work basis. In this regard, we sustain the findings of the adjudicating authority. Computer print outs were retrieved from the residence of Sh. S. K. Sahu during the search. M/s Jindal has claimed that such documents are not admissible as evidence since the conditions specified in Section 36B have not been satisfied. The conditions specified therein are that the CPU was under the control of M/s Jindal and the data was entered in the same regularly over the earlier period when the computer was regularly used to store the information. The adjudicating authority has rightly held that there is no evidence to the effect that these conditions have been satisfied. Appeal dismissed - decided against Revenue.

Summary

Issues:
1. Clandestine clearance of goods by the respondent.
2. Capacity of manufacturing stainless steel ingots.
3. Admissibility of evidence under Section 36B of the Central Excise Act.

Analysis:

Issue 1: Clandestine clearance of goods
The case involved allegations of clandestine clearance of goods manufactured by the respondent factory. The Anti-Evasion branch conducted search operations and issued a show cause notice based on incriminating documents and statements. The initial order confirmed duty demands and penalties. Upon appeal, the CESTAT remanded the matter to the adjudicating authority for fresh consideration, emphasizing the need for cross-examination, technical opinions, and supporting evidence. In the subsequent order, the adjudicating authority set aside the entire demand, leading to the Revenue's appeal.

Issue 2: Capacity of manufacturing stainless steel ingots
During the proceedings, the capacity of manufacturing stainless steel ingots by the respondent was a crucial aspect. The Chartered Engineer certified a limited production capacity, which the adjudicating authority failed to consider initially. The tribunal's remand directions required a reassessment of the production capacity. The Revenue argued that the respondent had the capability to manufacture more ingots than certified. However, examination of invoices and manufacturer clarifications revealed that the projected production capacity was inflated. Ultimately, the tribunal upheld the findings supporting the respondent's claimed production capacity.

Issue 3: Admissibility of evidence under Section 36B
A significant contention revolved around the admissibility of computer printouts retrieved during the investigation. The respondent argued that the documents did not meet the conditions specified under Section 36B of the Central Excise Act. The adjudicating authority concurred, stating that there was no evidence to prove compliance with the specified conditions. Consequently, the tribunal upheld the authority's decision, emphasizing the lack of evidence to support the admissibility of the retrieved documents.

In conclusion, the tribunal dismissed the Revenue's appeals, upholding the adjudicating authority's decision regarding the clandestine clearance of goods, the manufacturing capacity of stainless steel ingots, and the admissibility of evidence under Section 36B. The detailed analysis of each issue demonstrates the thorough consideration given to the facts and legal aspects of the case, resulting in the final judgment pronounced on 09.10.2017.