2018 (9) TMI 1484 - AT - Central Excise

Clandestine removal - demand based on consumption of electricity - entire case of the Revenue is based upon the records recovered from M/s Monu Steels and based upon the statement of the representative of M/s Monu Steels - Held that - The law i.e. as to whether the third party records can be adopted as an evidence for arriving at the findings of clandestine removal, in the absence of any corroborative evidence, is well established - the findings of clandestine removal cannot be upheld based upon the third party documents, unless there is clinching evidence of clandestine manufacture and removal of the goods. Penalty on M/s Kailash Traders in terms of Rule 26 of Central Excise Rules, 2002 - it was alleged that he has supplied the unaccounted raw material to the appellant, which has been further used by them for manufacture of their final product cleared clandestinely - Held that - The allegation was based upon the entries made in his record, without there being any corroborative evidence - there is virtually no evidence to show that such entries relate to the actual transportation and supply of the raw material to the present appellant - penalty not warranted and is set aside. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Confirmation of demand of duty, interest, and penalty | Imposition of penalty on individuals | Reliance on third party records as evidence | Setting aside of order based on previous judgment | Imposition of penalty on a registered dealer

Confirmation of demand of duty, interest, and penalty:
The appeal challenged the confirmation of a duty demand of ?10,53,147 along with interest and penalty of the same amount. The Commissioner had initially issued a demand of ?22,85,88,819 based on allegations of clandestine removal, primarily relying on electricity consumption. However, the Commissioner dropped a major part of the demand following a Supreme Court decision but upheld the demand of ?10,53,147. The Department did not object to this part of the order, and no cross-appeal was filed. The Tribunal found no infirmity in the order and upheld it.

Imposition of penalty on individuals:
Penalties of ?50,000 each were imposed on Noticee No. 3, the Director of Structure Mills Pvt. Ltd., M/s. Monu Steels, and M/s. Kailash Trader under Rule 26 of the Central Excise Rules, 2002. The penalty on the Director of the appellant was based on the Revenue's view of clandestine clearances, primarily relying on records recovered from M/s. Monu Steels. However, the Director denied any association with M/s. Monu Steels, and the Revenue did not conduct further inquiries, solely relying on entries in M/s. Monu Steels' records.

Reliance on third party records as evidence:
The case revolved around whether third-party records could serve as evidence for clandestine removal findings without corroborative evidence. The Tribunal cited legal precedents, including judgments from the Allahabad High Court and various Tribunals, emphasizing that findings of clandestine removal cannot be upheld based solely on third-party documents without clinching evidence of clandestine manufacture and removal.

Setting aside of order based on previous judgment:
The Tribunal noted that a show cause notice issued against the main manufacturer had been decided in favor of the assessee in a previous order. As the present appeal arose from those proceedings, the order under challenge was deemed liable to be set aside.

Imposition of penalty on a registered dealer:
A penalty of ?50,000 was imposed on M/s. Kailash Trader, a registered dealer, for allegedly supplying unaccounted raw material to the appellant, which was used for clandestine clearance. The penalty was based on entries in M/s. Kailash Trader's records without corroborative evidence. The Tribunal found no evidence linking the entries to the actual supply of raw material to the appellant and set aside the penalty.

In conclusion, all four appeals were allowed with consequential relief to the appellant based on the findings and analysis of the Tribunal, setting aside the demand, penalties, and orders challenged in the appeal.