2018 (8) TMI 784 - AT - Central Excise

Clandestine removal - MS bars - Revenue entertained a view that the higher figures reflected in ER-4 return is the correct clearance from the appellant s factory and the difference has been cleared without payment of duty, in a clandestine manner - Held that - Apart from the said difference, there is virtually no other evidence on record to show any clandestine manufacture and removal of the goods. Even if the assessee s explanation is not accepted it has to be appreciated that both the figures stand given in the two returns by the appellants themselves. The charges of clandestine removal are required to be produced by the Revenue and onus is heavily placed upon them. No efforts stand made by the Revenue to further investigate the matter and collect evidence of any clandestine activities - demand set aside. CENVAT Credit - duty paying invoices - credit availed on the basis of photocopies of the invoices issued by the input supplier - Held that - The input supplier as also the appellant are falling under the same division and the input supplier have got the photocopies of the invoices certified by their range Inspector to the effect that the said inputs stand cleared by the manufacturer on payment of duty. In addition, the returns filed by the said manufacturer as also the challans issued by them stand produced - denial of credit on a hyper-technical ground, in the absence of any allegation of non-receipt of goods by the assessee, is not called for - demand set aside. Appeal allowed in toto.

Summary

Issues:
1. Confirmation of duty against the appellant for alleged clandestine activities.
2. Discrepancy in clearance figures between ER-1 and ER-4 returns.
3. Burden of proof on Revenue for proving clandestine activities.
4. Denial of Cenvat credit based on photocopies of invoices issued by input supplier.

Analysis:
1. The judgment addresses the confirmation of duty amounting to ?21,28,500 against the appellant for alleged clandestine activities related to the manufacture of MS bars. The appellant contested the demand, arguing that no substantial evidence beyond the discrepancy in figures was presented to prove clandestine activities. The tribunal noted the lack of additional evidence from the Revenue to support the allegations, emphasizing the burden on the Revenue to establish such claims. Consequently, the tribunal found insufficient grounds to uphold the demand based solely on the comparison of figures in the returns.

2. A significant portion of the confirmed duty, amounting to ?20,30,646, was attributed to the difference in clearance figures between the ER-1 and ER-4 returns for the period 2010-11. The Revenue asserted that the higher figures in the ER-4 return indicated the correct clearance from the appellant's factory, implying duty evasion. However, the appellant maintained that the ER-4 returns were based on their balance sheets, encompassing sales from various branches and other activities. Despite the appellant's explanation, the lower authorities upheld the demand. The tribunal highlighted the necessity for concrete evidence of clandestine activities beyond mere discrepancies in figures, ultimately leading to the reversal of the decision.

3. In addition to the duty confirmation, a portion of ?97,854 was denied to the appellant as Cenvat credit due to the use of photocopies of invoices issued by the input supplier. The appellant and the input supplier belonged to the same division, with the input supplier providing certified photocopies of invoices and supporting documents. The tribunal deemed the denial of credit on technical grounds unwarranted, especially in the absence of any allegation regarding the non-receipt of goods by the appellant. Consequently, this aspect of the impugned order was also set aside.

4. Ultimately, the tribunal set aside the impugned orders and allowed the appeal in its entirety, emphasizing the lack of substantial evidence to support the allegations of clandestine activities and the unjust denial of Cenvat credit based on technicalities. The judgment underscores the importance of concrete proof and adherence to legal standards in confirming duty demands and denying legitimate credits.