2018 (1) TMI 415 - AT - Central Excise

Clandestine removal - shortage of inputs - demand based on eye estimation - principles of Natural Justice - Held that - the explanation put forward by the assessee would be sufficient to hold that the shortage, if any, is due to the impurities in the scrap. Moreover, the department has not conducted any physical stock taking. Even though the director and staff have given statements that there may be shortage, the same is not relevant for the reason that in the very statements they have explained the reasons for the shortage. Cross-examination of witnesses - Held that - it would be denial of natural justice if the assessee is not allowed to cross-examine the witnesses whose statements are being relied by the department. The department has failed to establish that there is shortage of raw materials - demand set aside - appeal allowed.

Summary

Issues:
Alleged irregular availing of CENVAT credit on imported scrap, shortage of raw materials, imposition of penalty under Rule 15 of CENVAT Credit Rules, 2004, non-imposition of penalty under section 11AC of Central Excise Act, 1944, denial of cross-examination of witnesses.

Analysis:
The case involved appeals arising from a common impugned order regarding the alleged irregular availing of CENVAT credit by the assessee on imported scrap and locally procured raw materials. The Preventive Unit visited the factory and found discrepancies in the physical stock of inputs and finished goods. The department issued a show cause notice proposing a demand for the availed CENVAT credit and penalty under Rule 15 of CENVAT Credit Rules, 2004. The original authority confirmed the demand but did not impose penalty under section 11AC. The assessee appealed against the demand and penalty, while the department appealed against the non-imposition of penalty under section 11AC.

The assessee contended that the allegation of raw material shortage lacked basis as no physical verification was conducted, and stock estimation was based on eye assumption. They argued that the scrap contained unwanted materials, leading to stock discrepancies. The department, however, maintained that the stock was short during the visit, indicating irregular credit availing. The adjudicating authority denied cross-examination of witnesses, which the assessee challenged citing denial of natural justice.

The Tribunal noted that the department failed to establish raw material shortage conclusively. The explanation provided by the assessee regarding impurities in the scrap was deemed sufficient to explain any discrepancies. Citing precedents, the Tribunal emphasized the importance of physical verification and the right to cross-examine witnesses for a fair decision. Consequently, the demand was set aside, and the appeal by the assessee was allowed, while the department's appeal was dismissed.

In conclusion, the Tribunal ruled in favor of the assessee due to the lack of concrete evidence supporting the alleged irregularities in availing CENVAT credit and shortage of raw materials. The denial of cross-examination was considered a violation of natural justice principles, leading to the dismissal of the department's appeal. Both appeals were disposed of accordingly.