2018 (6) TMI 1342 - AT - Central Excise

Clandestine manufacture and removal - allegation based on Computer printouts allegedly taken from hard disk shown to be resumed from Geeta Nagri office, Bijnore, Statements of various persons, alleged confession by suppliers of MS ingots and buyers of Saria (M.S. Bars) and alleged confession by Shri Lalit Agarwal etc. - cross-examination of witnesses - CENVAT credit - Rule 9(5) of Cenvat Credit Rules - penalty u/r 26 - Confiscation of cash and its release. Held that - The Hon'ble High Court of Delhi in the case of CCE vs. Vishnu Co. Pvt. Ltd. 2015 (12) TMI 593 - DELHI HIGH COURT , has held, that it was the responsibility of the Revenue to produce prosecution witnesses for cross examination, therefore, we do not find the finding by the Original Authority tenable that cross examination could not be offered because the appellant could not produce the prosecution witnesses - it was obligation on the part of the Revenue to produce its witnesses for cross examination. From the impugned Order-in-Original if the statements recorded in respect of the above stated persons are removed, then there is no evidence left for arriving at the conclusions drawn by the Original Authority. The statements of above stated persons were relied upon for alleging that the Geeta Nagari, Bijnore premises was taken on rent by the appellant, the computer was purchased by the appellant, Shri Bhagirath Roy, Shri Monmohan Gautam were employees of appellant and they were making entries in the computer on behalf of appellant and that the said entries revealed that the extra/unaccounted goods were manufactured by the appellant and clandestinely removed. All these conclusions do not have any other basis, than the statements of above stated persons, and as directed and ruled by Hon‟ble Allahabad High Court, the statements of above stated persons cannot be relied as evidence, since they were not produced for cross examination. Therefore, the findings by the Original Authority to arrive at a conclusion and passing of the present order has no basis. Regarding Parmarth Steel Alloys Pvt. Ltd. - Held that - It is clear from the records that the case of Revenue against Parmarth Steel Alloys Pvt. Ltd., is not based on any record resumed during search at the factory premises of Parmarth Steel Alloys Pvt. Ltd., but is based solely on the statements of Sheeru Malik, AasMohd. Idris, who were not produced by Revenue for cross-examination, hence in view of the law discussed above, demand of duty against Parmarth Steel cannot be sustained. In respect of Kamakhya Steel Pvt. Ltd. - Held that - The whole demand is based on assumption and on the basis of statements which are not a good piece of evidence as discussed hereinabove. Accordingly, demand in respect of Kamakhya Steel Pvt. Ltd., is also set aside alongwith penalty. They shall also be entitled to consequential benefits. Since the demands are not sustainable no penalties are sustainable. Appeal allowed.

Summary

Issues Involved:
1. Alleged clandestine manufacture and removal by appellant companies.
2. Non-supply of requisite documents and denial of cross-examination of witnesses.
3. Admissibility of computer printouts as evidence.
4. Confiscation of cash and its return with interest.
5. Imposition of duty, interest, and penalties on appellants.

Detailed Analysis:

1. Alleged clandestine manufacture and removal by appellant companies:
The case against the appellant companies was based on alleged clandestine manufacture and removal of excisable goods. The revenue's case relied heavily on computer printouts, statements of employees, suppliers, and buyers, and other documents. However, the Tribunal found that the statements of key witnesses were not subjected to cross-examination, and thus, their statements could not be considered as evidence. The Tribunal emphasized the necessity of cross-examination to uphold the principles of natural justice.

2. Non-supply of requisite documents and denial of cross-examination of witnesses:
The Tribunal noted that the revenue had failed to supply all requisite documents and denied the cross-examination of key witnesses whose statements were relied upon. The Tribunal referred to the judgment of the Hon’ble Allahabad High Court, which mandated that if the revenue chose to rely on statements, the persons making those statements must be made available for cross-examination. The Tribunal concluded that the denial of cross-examination violated the principles of natural justice, rendering the statements inadmissible.

3. Admissibility of computer printouts as evidence:
The Tribunal held that the computer printouts retrieved from the hard disk could not be considered as evidence because the authors of the entries were not produced for cross-examination. The Tribunal relied on the Supreme Court’s judgment in Bareilly Electricity Supply Co. Ltd. v. Workmen, which stated that documents used to establish facts must be supported by the testimony of their authors. Since the authors were not cross-examined, the printouts lacked evidentiary value.

4. Confiscation of cash and its return with interest:
The Tribunal found the confiscation of ?1,78,07,797 as sale proceeds of clandestinely removed goods to be illegal. It was noted that the notification under Section 12 of the Central Excise Act, 1944, which allowed for such confiscation, was not amended to align with the Central Excise Rules, 2002. Consequently, the confiscation was without jurisdiction. The Tribunal directed the revenue to return the confiscated amount along with the interest earned, following the Supreme Court’s ruling in Union of India v. Tata Chemicals Ltd.

5. Imposition of duty, interest, and penalties on appellants:
The Tribunal set aside the demands of duty, interest, and penalties imposed on the appellant companies and their directors. It was observed that the revenue failed to provide sufficient and tangible evidence to support the allegations of clandestine manufacture and removal. The Tribunal emphasized that serious charges like clandestine removal must be substantiated with concrete evidence such as excess raw material purchase, excess electricity consumption, and detailed records of production and sales, none of which were adequately presented by the revenue.

Conclusion:
The Tribunal allowed the appeals, set aside the impugned order, and directed the revenue to refund the confiscated amount along with interest. The demands of duty, interest, and penalties were annulled due to the lack of admissible evidence and the violation of principles of natural justice.