2018 (10) TMI 5 - AT - Central Excise

Clandestine manufacture and removal - M. S. Ingots - demand for duty raised on the basis of the input output norm declared by the appellant in their ER-5 returns - whether the demand raised thereby on the basis of arithmetical calculation can be sustained? Held that - The allegation of clandestine clearance has been made by the Revenue authorities, but the same has not been supported by any documentary evidence. The entire demand has been worked out on the basis of presumption, taking into account the formula declared by the appellant - Clandestine clearance needs to be established on the basis of tangible documentary as well as oral evidence. In the present case, no such evidence has been brought on record by the Revenue. The Tribunal in the case of M/S EASTER (INDIA) CHEMICALS LTD. & RAJ TANDON VERSUS COMMISSIONER OF CENTRAL EXCISE, GHAZIABAD 2017 (2) TMI 304 - CESTAT ALLAHABAD has set aside the demand made only on the basis of input output ratio declared in ER-5 returns. The demand of Central Excise duty is not justified, in the absence of any documentary evidence supporting the charge of clandestine clearance - appeal allowed - decided in favor of appellant.

Summary

Issues:
Demand for Central Excise duty based on input-output norm declared in ER-5 returns.

Analysis:
The appellant, engaged in manufacturing M.S. Ingots, declared a specific input-output ratio in their ER-5 returns. The Department alleged that the appellant under-accounted for the production of M.S. Ingots during a certain period, leading to a demand for differential Central Excise duty. The Original Authority confirmed the duty demand, but the Commissioner (Appeals) reduced it considering certain factors. The appellant challenged the reduced demand in the present appeal.

The appellant's advocate argued that a similar demand made for an earlier period was dropped by the Jurisdictional Commissioner after considering additional factors. He contended that the demand was based on presumed production calculated from the declared ratio, which might not accurately reflect actual production due to various variables. He cited Tribunal decisions where demands based solely on input-output ratios were set aside.

The Revenue justified the demand, stating that the ratio declared by the appellant in their ER-5 returns was binding. The Tribunal analyzed the dispute, focusing on whether the demand based on the declared ratio could be upheld. It noted that the Revenue's allegation of clandestine clearance lacked documentary evidence and was solely based on presumption using the appellant's formula.

The Tribunal emphasized that clandestine clearance allegations must be substantiated with tangible evidence, which was lacking in this case. Referring to a Tribunal decision, the Tribunal ruled that demands solely relying on input-output data without proper legal invocation and evidence were not sustainable. Consequently, the Tribunal set aside the impugned order and allowed the appeal, finding the Central Excise duty demand unjustified without concrete proof of clandestine activities.

In conclusion, the Tribunal ruled in favor of the appellant, setting aside the demand for Central Excise duty due to insufficient evidence supporting the charge of clandestine clearance.