2019 (6) TMI 945 - AT - Central Excise

Clandestine removal - main allegation against them as per show cause notice is that they have supplied invoices to one M/s. Delight Industries, Delhi, to facilitate the availing of cenvat credit without supplying goods - HELD THAT - In the chain of transaction, supply of goods in question from M/s. Bokaro Steel Limited to M/s. Prompt Enterprises has not been doubted. Further, the transaction between M/s. Prompt Enterprises and the appellant M/s. Amar Steel Syndicate, have not been doubted. The doubt has been raised by Revenue on not finding the goods at the time of inspection, for which a cogent explanation was given by the partners of M/s. Delight Industries that such goods were lying with their job workers at the relevant time, that no further investigation was made in this respect. So far, the evidence of the transporters and personnel of M/s. Prompt Enterprises is concerned, such statements have been recorded behind the back of these appellants. There is no mis-match of the records of these appellant nor any mis-match in the physical stock on the day of search (30 September, 2014) was found. Further, the Revenue have not investigated that if the goods were not received by M/s. Delight Industries, then to where alternatively were they dispatched. Further, the crucial evidence of the truck drivers in question have not been recorded. Further, no goods were found to be removed clandestinely attracting confiscation and accordingly the penalty invoked under Rule 25 on the appellant firm and Rule 26 on the partners is bad and not imposable. The cogent explanation given by the partners of M/s. Delight Industries was not found untrue - the parties in question have maintained proper records and the transaction in question was found recorded in the relevant books of accounts, registers, maintained in ordinary course of business. Appeal allowed - decided in favor of appellant.

Issues Involved:
1. Allegation of fraudulent availing of Cenvat credit without actual supply of goods.
2. Legitimacy of penalties imposed under Rule 25 and Rule 26 of Central Excise Rules read with Rule 15A of Cenvat Credit Rules.
3. Validity of evidence and statements recorded during the investigation.
4. Adequacy of stock verification and discrepancies found during the search.
5. Admissibility of explanations provided by the appellants regarding the alleged non-receipt of goods.

Issue-wise Detailed Analysis:

1. Allegation of Fraudulent Availing of Cenvat Credit:
The main allegation against M/s. Amar Steel Syndicate and its partners was that they supplied invoices to M/s. Delight Industries, Delhi, to facilitate the availing of Cenvat credit without actually supplying the goods. The Revenue's investigation revealed that 707.645 MT of CR coils/strips/sheets valued at ?3,59,16,107 were allegedly supplied to M/s. Delight Industries, but these goods were not found in their premises during the search on 7 August 2014. The Revenue contended that the Cenvat credit of ?35,71,874/- was fraudulently availed and utilized by M/s. Delight Industries based on these invoices.

2. Legitimacy of Penalties Imposed:
Penalties were imposed on M/s. Amar Steel Syndicate and its partners under Rule 25 and Rule 26 of Central Excise Rules read with Rule 15A of Cenvat Credit Rules. The appellants contested these penalties, arguing that no goods were found to be removed clandestinely without payment of duty, and that the penalties were imposed mechanically without proper application of mind.

3. Validity of Evidence and Statements:
The appellants argued that the statements of various persons, including those from M/s. Prompt Enterprises Private Limited and transporters, were recorded behind their backs and were not subjected to cross-examination, thus violating Section 9D of the Central Excise Act. They contended that the statements of truck drivers, who could provide first-hand evidence of delivery or non-delivery of goods, were not recorded.

4. Adequacy of Stock Verification:
During the search at M/s. Delight Industries, discrepancies were found in the stock as the goods were not tallying with the RG-1 Register. The appellants argued that the stock register had not been updated, leading to the detention and subsequent seizure of goods. They also pointed out that no excess or shortage was found during the search at their own premises on 30 September 2014.

5. Admissibility of Explanations Provided:
The appellants provided explanations that the goods in question were lying with job workers at the time of the search and were subsequently returned to them in August 2014. They argued that this explanation was not found untrue by the Revenue. Additionally, they maintained proper records and the transactions were duly recorded in their books of accounts and returns filed with the Sales Tax Department.

Conclusion:
The Tribunal found that the Revenue did not provide sufficient evidence to prove the fraudulent availing of Cenvat credit. The statements relied upon by the Revenue were recorded without cross-examination, making them inadmissible. No discrepancies were found in the appellants' stock records, and the explanation provided by the partners of M/s. Delight Industries was not disproven. Consequently, the penalties imposed under Rule 25 and Rule 26 were deemed unjustified. The Tribunal allowed the appeals, setting aside the impugned order, and the appellants were entitled to consequential benefits in accordance with the law.

← Previous Next →