2018 (5) TMI 659 - AT - Central Excise

Clandestine removal - amount of ₹ 1,54,58,307/- has been confirmed towards Excise duty for the period from 2004-05 to 2006-07 on the presumption that the appellant have clandestinely cleared their finished goods, by showing excessive generation of scrap and burning loss - Held that - The weight of the goods received back was apparently different in the three registers. Accordingly, we find without quantifying the material difference, revenue has presumed that there could be situation where the goods were issued/ sent for job work but not received back and that the goods shown as received in the job work register, but not reflected as received in register no.64/55, were actually not received. Further, we find that Shri Brijesh Kumar Agarwal, Director in his statement had categorically stated that such private registers were prepared by employees and the said registers were not related to management and as such we find that the same are not reliable nor have any evidential value, for drawing adverse inference against the appellant - further, it is an admitted fact that the appellants have disclosed higher percentage of production and less percentage of scrap plus burning loss, during the periods under consideration and accordingly, adverse inference drawn by revenue on assumption and presumption is not tenable. Thus, duty- of ₹ 1,54,58,307/- is set aside. Demand of ₹ 25,52,260/- relating to disallowance of captive consumption of inputs/ semi finished goods - Held that - the same is also based on the presumptions, that these were actually converted into forgings, but were used for repair of plant and machinery and manufacture of tools, dies & fixtures, etc. - there is no proper basis for such presumption and the denial of benefit of exemption under Notification No.67/95-CE, is only on the basis of suspicion - demand of duty of ₹ 25,52 260/- is not tenable and the same is set aside. Demand with respect to alleged shortage in the stock of raw materials, scrap and finished goods on the date of inspection - Held that - there is no calculation sheet and/or weighment slips available on record. From perusal of panchnama, it is the evident that the physical verification is done by eye estimation - the demand of duty is bad and the same is without following the procedure and is set aside. Demand relating to receipts of inputs from M/S RINL which were sent on job work to M/S R.K.G. International without cover of invoice and without reversal of Cenvat credit - held that - As the mistake is committed by the management of the appellant s company, the same is confirmed, As the amount was reversed during investigation, the penalty on the same is also set aside. Disallowance of Cenvat credit of ₹ 2,86,791/ relating to three invoices, being inputs dispatched by M/S Shyam Forgings - natural justice - Held that - In absence of providing cross-examination, and copy of G.R. etc. we find that the appellants had not been provided proper opportunity of hearing - matter remanded for de novo adjudication. Appeal allowed in part.

Summary

Issues Involved:
1. Alleged evasion of Central Excise duty of ?1,92,30,754/- due to suppressed production.
2. Recovery of ?5,60,470/- alleged to be wrongly taken as Cenvat credit.
3. Liability of the appellant's company under Rule 25 of Central Excise Rules and Section 11AC of the Act, and imposition of penalty under Rule 15(2) of CCR, 2004.
4. Liability of the appellant's director under Rule 26 of Central Excise Rules, 2002 and Rule 15(1) of Cenvat Credit Rules, 2004.

Issue-wise Detailed Analysis:

1. Alleged Evasion of Central Excise Duty:
The appellant was accused of evading Central Excise duty by showing excessive scrap and burning loss. The department's presumption was based on discrepancies in private registers and job work registers. The Tribunal found that the private registers were maintained by employees for convenience and not authorized by the management. The Tribunal noted that the input/output norms fixed by the Assistant Commissioner in 2002 were consistent with the appellant's records. The Tribunal held that assumptions and presumptions could not replace concrete evidence. Consequently, the demand of ?1,54,58,307/- was set aside.

2. Recovery of Alleged Wrongly Taken Cenvat Credit:
The Tribunal examined the demand of ?25,52,260/- related to captive consumption of inputs and semi-finished goods. The Tribunal found the demand to be based on presumptions without proper evidence. The appellant had provided contractor bills for the fabrication work, which were not disproven. Thus, the demand was set aside.

3. Liability Under Central Excise Rules and Section 11AC:
Regarding the demand of ?12,20,388/- for alleged shortages in stock, the Tribunal found that the physical verification was done by eye estimation without weighment slips or calculation sheets. Therefore, the demand was deemed erroneous and set aside.

4. Liability of the Appellant's Director:
The Tribunal considered the demand of ?2,62,690/- related to inputs sent to job work without proper documentation. The appellant admitted to the mistake, and the amount was reversed during the investigation. The Tribunal confirmed the demand but set aside the penalty.

Additional Issues:
The demand of ?2,86,791/- related to inputs dispatched by M/S Shyam Forgings was remanded for denovo adjudication. The Tribunal directed that the appellant be provided with an opportunity for cross-examination and access to relevant documents.

Judgment Summary:
- The demand of ?1,54,58,307/- was set aside.
- The demand of ?25,52,260/- was set aside.
- The demand of ?12,20,388/- was set aside.
- The demand of ?2,62,690/- was confirmed, but the penalty was set aside.
- The demand of ?2,86,791/- was remanded for denovo adjudication.
- The personal penalty on the director was set aside.

The Tribunal directed the appellant to appear before the adjudicating authority within 90 days for the remanded matters.

Pronounced in Court on 05/04/2018.