2018 (2) TMI 1230 - AT - Central Excise

Clandestine Removal - Department has alleged that the assessee has indulged in evasion of central excise duty by purchasing raw materials viz. MS ingots without accounting and utilizing the same in the manufacture and clearance of CTD bars without accounting and without payment of excise duty during the period October 2004 to 13.06.2006. Held that - the main edifice of the department s case against the appellants is built on the so called advance files containing the details of charges paid to the labour contractors of loading and unloading - the recovery of such payments made for loading can only become an additional support to main evidences like proof of evidence for transportation of the finished products and evidence of realisation of the value relating to the sale of any alleged clandestinely removed goods. It is very difficult for the department to lay hands on each and every link in the chain of the modus operandi involving clandestine clearances. However total absence of any evidence or for that matter evidences available on for a limited period cannot be extrapolated to a presumption that such activity had been on-going for a larger period - the available evidences as capsuled in the annexures to the SCN is limited to a few months only viz. from April 2006 to June 2006. Any confirmation of duty liability can only be based only on the evidences which have been relied upon in the annexures to the SCN - The demand will necessarily be restricted to the period for which evidences are available as per in the annexures to the SCN. The matter then needs to be re-adjudicated keeping all these aspects in mind. Penalty u/s 11AC - Held that - penalty upheld. Appeal allowed by way of remand.

Issues: Alleged evasion of central excise duty, reliance on seized private documents, differential duty liability, imposition of penalties, non-reliance on findings available in seized documents, demand duty liability based on assumptions, denial of receipt of raw materials, evidence of unaccounted inputs, reliance on advance files for demand calculation.

Alleged Evasion of Central Excise Duty:
The case involved allegations of evasion of central excise duty by purchasing raw materials without accounting and utilizing them in the manufacture and clearance of CTD bars without payment of excise duty. The department relied on seized private documents and oral evidence to project clandestine removal of CTD bars. The impugned order confirmed the differential duty liability and imposed penalties on the company's Managing Director and Commercial Director.

Reliance on Seized Private Documents:
The department relied on seized private documents recovered from the premises of the Managing Director to support the allegations of clandestine removal of CTD bars. The documents were used as evidence to establish the evasion of central excise duty.

Differential Duty Liability and Penalties:
The impugned order confirmed a significant differential duty liability against the demand proposed in the show cause notice. Penalties were imposed under Section 11 AC of the Central Excise Act and Rule 26 of the Central Excise Rules on the Managing Director and Commercial Director of the company.

Non-Reliance on Findings in Seized Documents:
The department appealed against the non-reliance of the adjudicating authority on the findings available in the seized documents. The appellant contended that the aspect had been thoroughly examined by the adjudicating authority, and there was no merit in the department's appeal.

Demand Duty Liability Based on Assumptions:
The appellant argued that the entire demand was based on assumptions and presumptions. They highlighted the lack of documentary evidence for the period prior to a certain date and emphasized that no statements were recorded from buyers of CTD bars for that period.

Denial of Receipt of Raw Materials and Unaccounted Inputs:
The appellant denied receipt of raw materials for the period before a specific date and challenged the department's allegations of unaccounted inputs. They pointed out discrepancies in the department's claims regarding the alleged production capacity and quantities of CTD bars.

Reliance on Advance Files for Demand Calculation:
The department's case was primarily built on advance files containing details of charges paid to labor contractors for loading and unloading. However, the appellate tribunal found discrepancies in the payment records and noted that the evidence of unaccounted raw materials was limited to a specific period.

Conclusion:
The appellate tribunal found that the demand should be restricted to the period for which evidence was available in the annexures to the show cause notice. The case was remanded for re-adjudication to re-quantify the differential duty liability without relying on the advance files. The penalty under Section 11 AC was upheld, with the quantum to be determined based on the revised duty liability in the re-adjudication process.

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