2018 (8) TMI 942 - AT - Central Excise

Penalty - Clandestine Removal - SS Ingots - goods were carried without any invoice/bill of the same except a weighment slip - case of appellant is that they deposited duty immediately on the day of seizure before issuance of show cause notice, hence equivalent penalty not called for - CENVAT Credit - credit was availed on Nickel Cathodes, which was not found in the factory. Held that - The arguments advanced by the Ld. Consultant do not carry much force, especially, when there is no proof of receipt of goods at any time. The plea that substantial benefit should not be denied for procedural lapse is clearly not tenable as there is fraudulent availment of Cenvat credit without supply of goods and it is not merely a procedural lapse. In the present case, the Revenue has been able to establish by way of contrary statements of the Director and Sh. Vijay Kumar, accountant of M/s Aseem Global Ltd that the Cenvat credit has been irregularly taken. Besides, the appellant has been changing their versions but still failed to account for shortage of inputs - Revenue has done the verification from M/s Aseem Global Ltd., which established that the appellants were giving contrary statement. There is no infirmity in the order of the Commissioner (Appeals) and the same is sustained - appeal dismissed - decided against appellant.

Summary

Issues:
1. Clandestine removal of SS Ingots without proper documentation.
2. Wrong availment of Cenvat credit on Nickel Cathodes.

Analysis:

Issue 1: Clandestine removal of SS Ingots
The case involved the interception of a truck carrying SS Ingots without proper documentation, leading to allegations of clandestine removal. The Director of the company admitted to the removal of the goods without proper accounting, in violation of Central Excise Rules. The weighment slip produced was deemed insufficient, and the goods were found to have been cleared clandestinely to evade duty. The appellant did not contest this demand, resulting in the upheld of the demand along with interest and penalty.

Issue 2: Wrong availment of Cenvat credit on Nickel Cathodes
Regarding the wrong availment of Cenvat credit on Nickel Cathodes, discrepancies arose as the physical verification did not match the records. The appellant claimed the goods were sent for cutting, but statements from M/s. Aseem Global Ltd contradicted this claim. The appellant's changing versions and contradictions in statements indicated an attempt to mislead investigations. The appellant failed to provide evidence of goods receipt, and the claim of procedural lapse was dismissed as fraudulent credit was taken without actual receipt of goods. The Tribunal found no merit in the appellant's arguments, especially given the lack of proof of goods receipt. The judgments cited by both sides were analyzed, and it was concluded that the appellant failed to substantiate their claims, leading to the dismissal of the appeal.

In conclusion, the Tribunal upheld the order of the Commissioner (Appeals) due to the clear contradictions and lack of evidence presented by the appellant. The appeal was dismissed, affirming the decision regarding both issues raised in the case.