2018 (4) TMI 535 - AT - Central Excise

Clandestine removal - shortage of stock - Held that - apart from the shortages read with the statement of Shri Balasubramaniam, which is also not a confessional statement, the finding of clandestine removal cannot be upheld against the appellant. CENVAT credit - denial on the ground that the appellant was purchasing bazaar/quality scrap from the market and was arranging Central Excise invoices separately for the purpose of availment of CENVAT Credit - Held that - contention of the learned AR that the in the present case, the invoices relates to the same supplier, which were the subject matter of the earlier proceedings and as such it should be assumed that the credit was availed by the appellant without actually receiving the material covered by the said invoices, cannot be appreciated, inasmuch as the facts of each and every case are required to be appreciated independently and no assumption can take place of legal evidence. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Clandestine clearance based on shortages detected during visit and statement of representative.
Denial of CENVAT Credit due to alleged purchase of bazaar scrap without duty payment.

Analysis:
Clandestine Clearance:
The case revolves around shortages found during a visit to the factory and a statement by the appellant's representative. The appellant explained that the shortages were due to defective "plant returns" being re-used, not clandestine removal. The Revenue failed to provide substantial evidence supporting their allegations. Legal precedents were cited to emphasize that mere shortages do not prove clandestine activities. The Tribunal found no basis to uphold the claim of clandestine removal, considering the explanations provided and lack of concrete evidence.

Denial of CENVAT Credit:
The denial of CENVAT Credit was based on the assumption that the appellant purchased bazaar scrap without duty payment and obtained invoices separately. However, this conclusion relied solely on the representative's statement and the presence of trucks outside the factory. The Tribunal noted the absence of evidence proving the purchase of bazaar scrap or substitution of invoices. Legal precedents were cited to highlight the necessity of proper investigation and evidence. The Tribunal found no substantial proof to support the denial of CENVAT Credit, as the Revenue failed to establish the alleged practices. The Tribunal emphasized the need for independent evaluation of each case and rejected assumptions without legal evidence.

The impugned order was set aside, and both appeals were allowed in favor of the appellants, providing consequential relief. The judgment highlighted the importance of concrete evidence and proper investigation to substantiate claims of clandestine activities or fraudulent practices, emphasizing the need for a fair and independent assessment in each case.