2018 (10) TMI 1548 - AT - Central Excise

Clandestine removal - shortage of scrap - whole allegation is based only on ER-4 return - case of assessee is that it is a case of a bona fide clerical error which could have been verified with regard to the ER-1 returns - Held that - There was no allegation by the Revenue that there was any such mistake or difference unearthed even in ER-1 returns. Unfortunately, there is also no finding on the appellant s stand right from its reply to the Show Cause Notice that the appellant had furnished ER-1 returns for the year, Form-IV Register, chart reflecting purchase and usage of raw material/removal of raw material as such, etc., along with its replies to Show Cause Notice. The Revenue has not taken any supporting evidence to nail the assessee on the alleged difference in stock in ER-4 return which only points out that no further investigation was done in the interests of justice. It is the settled position of law that the allegations/assumptions howsoever strong, cannot take the place of proof - The Revenue has only harped upon the difference in closing stock of raw material, but nothing prevented the Revenue from examining the balance-sheet for the year filed with the Income Tax Department vis- -vis the appellant s ledger account filed therewith or the revised ER-4 return. The demand on the alleged difference cannot sustain - appeal allowed - decided in favor of appellant.

Summary

Issues: Alleged shortage of Cenvated input Rolling Scrap due to clerical error

Analysis:
The appeal was filed against the Order-in-Appeal passed by the Commissioner of G.S.T. & Central Excise, alleging a shortage of Cenvated input Rolling Scrap due to a clerical mistake. The Show Cause Notice highlighted the difference in the closing balance of Rolling Scrap as per ER-4 submissions, leading to the allegation of intentionally suppressing the shortage of Cenvated inputs. The Order-in-Original confirmed the proposals, prompting the appellant to challenge the Commissioner's decision in this appeal.

Analysis:
During the hearing, the appellant argued that the alleged difference in closing stock was a result of a clerical error, supported by the submission of a revised/corrected ER-4 and proper maintenance of statutory records. The Department's failure to investigate further despite the revised returns and absence of discrepancies in other records like RG-1 and ER-1 returns were emphasized by the appellant to refute the allegations.

Analysis:
In contrast, the Revenue contended that the appellant lacked proper documentation regarding input receipt, usage, and disposal at their premises. The authenticity of computer printouts submitted by the appellant was also questioned by the Revenue.

Analysis:
Upon reviewing the documents, the Tribunal noted the appellant's consistent claim of a clerical error, emphasizing the absence of discrepancies in ER-1 returns and other supporting evidence. The Tribunal criticized the Revenue for not conducting a thorough investigation and relying solely on the difference in the ER-4 return.

Analysis:
The Tribunal reiterated the principle that allegations must be substantiated with proof and criticized the Revenue for not exploring other avenues of verification, such as examining the balance-sheet or ledger accounts. Ultimately, the Tribunal found the demand based on the alleged difference unsustainable and set aside the impugned Order, allowing the appeal with consequential benefits.

Analysis:
In conclusion, the Tribunal allowed the appeal, highlighting the lack of concrete evidence supporting the alleged shortage of Cenvated input Rolling Scrap and emphasizing the importance of thorough investigation and substantiation of allegations in such cases.