2018 (2) TMI 282 - AT - Central Excise

CENVAT credit - Clandestine removal - the case of the Revenue is that the main appellant stated to be manufacturing PVC Compound and Master Batches showing more production of PVC Compound and Master Batches, whereas study of consumption of power supplied by NDPL and Generators installed in their factory would reveal that the main appellant actually manufactured less quantity of PVC Compound and Master Batches - issue of invoices without the issue of goods - It was also alleged that the main appellant had not used the said resin in their final product and diverted to the manufacturer of Battery Separator, who are SSI Units and the main appellant availed Cenvat Credit thereon - Held that - this Tribunal already decided the case in respect of other customer, namely M/s Paramount Communication Ltd., 2018 (1) TMI 350 - CESTAT NEW DELHI located outside Delhi-I jurisdiction, where the main appellant issued the invoices. In that case, the Tribunal has taken a consistent view that Cenvat Credit cannot be denied merely on the basis of statements, which are un-corroborative in nature. The case of the Revenue is that the buyers made payment of the cheques and the main appellant returned cash after deducting 2-3% commission. The Investigating officer had not made any attempt to examine the Bank Account. No cash was recovered at any place, as the matter involved huge amount of cash - The Tribunal in the case of Aum Aluminium Private Limited Vs. Commissioner of Central Excise, Vadodara 2012 (4) TMI 557 - CESTAT AHMEDABAD observed that un-accounted sales proceeds in substantial cash from factory or office premises or anywhere else in direct control of the assessee are not recovered and therefore, the charge of clandestine removal of goods cannot be sustained. The appellant cleared the goods on payment of Central Excise duty and also paid VAT/CST. The entire transaction is duly recorded in the books of accounts which were duly audited. Such documents and records cannot be brushed aside merely on the basis of various statements of the transporter, some buyers etc., unless such statements are based on records. In the present case, there is no verification of records maintained by the main appellant and the others. Thus, the denial of credit and imposition of penalties cannot be sustained. Appeal allowed - decided in favor of appellant.

Issues Involved:
1. Legitimacy of Cenvat Credit availed by the main appellant.
2. Allegations of issuing invoices without actual delivery of goods.
3. Use of CP 172 SG grade resin in the manufacture of PVC Compound.
4. Statements of transporters and other parties.
5. Denial of cross-examination requests.
6. Alleged cash transactions against cheques.
7. Power consumption analysis.
8. Previous investigations and adjudications.
9. Settlement by some buyers before the Settlement Commission.

Detailed Analysis:

1. Legitimacy of Cenvat Credit:
The main appellant, engaged in the manufacture of PVC Compound and Master Batches, availed Cenvat Credit on inputs and capital goods. The Adjudicating authority confirmed a demand of ?9,73,52,981/- along with interest and penalties, alleging that the appellant availed credit on inputs not used in manufacturing but diverted elsewhere. The Tribunal found that the department had previously investigated the same issue and found no discrepancies, thus questioning the legitimacy of the current demand.

2. Allegations of Issuing Invoices Without Actual Delivery:
The Revenue alleged that the main appellant issued cenvatable invoices without delivering goods, facilitating buyers to avail inadmissible Cenvat Credit. The Tribunal noted that the factory and residence searches revealed no discrepancies in accounts, and no substantial cash was recovered to support the claim of cash transactions against cheques. The Tribunal found the statements of transporters unreliable and uncorroborated by physical evidence, such as sales tax check post stamps on transport documents.

3. Use of CP 172 SG Grade Resin:
The Adjudicating authority claimed that CP 172 SG grade resin, costlier than other resins, was not used in manufacturing but purchased to claim higher Cenvat Credit. The Tribunal found no evidence to support that CP 172 SG resin cannot be used in manufacturing PVC Compound. The Tribunal cited a previous order where similar proceedings were dropped, establishing that the resin could be used in the manufacture of wires and cables.

4. Statements of Transporters and Other Parties:
The Tribunal found that the statements of transporters and other parties were inconsistent and not corroborated by physical evidence. For instance, transport documents bore stamps from sales tax check posts, contradicting transporter statements. The Tribunal emphasized the need for corroborative evidence to support allegations.

5. Denial of Cross-Examination Requests:
The appellants argued that the Adjudicating authority denied their requests for cross-examination of key witnesses, which could have impacted the findings. The Tribunal found merit in this argument, noting that cross-examination could have clarified inconsistencies in statements.

6. Alleged Cash Transactions Against Cheques:
The Adjudicating authority claimed that the main appellant returned cash after deducting 1-3% against cheques received from customers. The Tribunal found no evidence of such large cash withdrawals from bank accounts to support this claim. It also noted the impracticality of such transactions due to additional costs like CST and DVAT.

7. Power Consumption Analysis:
The Revenue argued that power consumption data indicated lower actual production than reported. The Tribunal found that the main appellant had three generators, with two in running condition, and there was no evidence of raw material diversion. The Tribunal dismissed the power consumption analysis as insufficient to prove the allegations.

8. Previous Investigations and Adjudications:
The Tribunal noted that a previous investigation in 2004 found no discrepancies, and a subsequent Show Cause Notice was set aside by the Commissioner (Appeals). This history raised questions about the current allegations and demand.

9. Settlement by Some Buyers Before the Settlement Commission:
The Revenue argued that settlements by some buyers before the Settlement Commission indicated admission of guilt. The Tribunal cited a Larger Bench decision, stating that opting for settlement does not necessarily imply admission of fraud or suppression. The Tribunal emphasized that each case should be judged on its own merits and evidence.

Conclusion:
The Tribunal found the Revenue's case unsubstantiated due to lack of corroborative evidence, inconsistencies in statements, and failure to examine relevant records. It set aside the impugned order, allowing the appeals filed by the appellants. The Tribunal clarified that this decision does not extend to those who settled their cases before the Settlement Commission.

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