2018 (4) TMI 953 - AT - Central Excise

Clandestine removal - shortage of raw material and finished goods - spurious entries in CENVAT credit account - Held that - the submissions made by the appellant have not been examined for acceptability. Undoubtedly, circumstantial evidence may exist for the investigators to conclude that action for recovery needs to be initiated under Central Excise Act, 1944. Nevertheless, the findings of the original authority appeared to flow from inferences that need to be subject to the test of ascertainment against the submissions made by the appellant. The matter remanded to the original authority for re-determination after considering the submissions of the appellant - appeal allowed by way of remand.

Summary

Issues: Allegation of clandestine removal, shortage of raw materials, spurious entries in CENVAT credit account, duty recovery, interest, and penalties under Central Excise Act, 1944.

Allegation of Clandestine Removal:
The appeal was against an order confirming duty recovery under section 11A of Central Excise Act, 1944, due to alleged clandestine removal of finished products, shortage of raw materials, and spurious entries in the CENVAT credit account. The appellant contended that the adjudicating authority failed to address their submissions supported by case laws and evidence. The appellant challenged the valuation adopted in the order by citing relevant legal precedents. The respondent argued for sustaining the order based on recorded statements and documented buyer-seller relationship supported by legal decisions.

Findings on Clandestine Removal:
The judgment detailed instances where the appellant allegedly purchased raw materials through a third party, financed purchases, and used self-manufactured ingots in production, indicating clandestine activities. The judgment calculated the concealed use of self-manufactured ingots and highlighted discrepancies in the quantities used. The judgment noted that the original authority's findings were based on circumstantial evidence and needed further examination against the appellant's submissions for acceptability.

Decision and Remand:
The Tribunal found that the appellant's submissions were not adequately examined for acceptability, suggesting a lack of thorough consideration. The judgment concluded that while circumstantial evidence existed, the findings required scrutiny against the appellant's contentions. Therefore, the impugned order was set aside, and the matter was remanded to the original authority for re-determination after considering the appellant's submissions. The judgment emphasized the need for a more comprehensive assessment before initiating recovery actions under the Central Excise Act, 1944.

This detailed analysis of the judgment highlights the issues of clandestine removal, shortage of raw materials, and spurious entries in the CENVAT credit account, along with the legal arguments presented by both parties and the Tribunal's decision to remand the matter for further examination.