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2019 (11) TMI 430 - AT - Central ExciseClandestine procurement of raw material and removal of finished goods - MT Billets - shortages of raw material - case of appellant is that the allegation is based on presumption and on the third party evidence - corroborative evidences or not - HELD THAT - Only documentary evidence to proceed against the appellant is loose parchi No. 5 (RUD2) as recovered by the department during the search of premises of M/s RPSL recording the alleged shortage. Apparently, there is no documentary evidence corroborating the said RUD2. No doubt show-cause notice is mentioning that separate proceedings had been initiated against M/s RPSL, but till date department has not produced from record the status of such proceedings , if any, ever initiated. It is coming in the show-cause notice itself para-6 (C) thereof as acknowledgement by Mr. Pankaj Sharma that they never cleared any excisable goods without payment of duty. He also acknowledged that no incriminating document was recovered from their unit during the course of search conducted in appellant s factory under Panchnama dated 05.02.2015. There is no denial of the department to the said acknowledgement/deposition nor any evidence contrary to that. In such circumstance the loose-parchi recovered from M/s RPSL cannot be corroborated from the statement of Manager, M/s RPSL irrespective having any admission for receiving unaccounted MS Billets from the appellant. Both these evidences, documentary as well as oral are nothing more than a third-party evidence. Law has been settled that where the allegation of duty evasion is based on the documents and records procured or seized from other person or premises the burden of proof does not lie on the person accused of such evasion. It is the settled law of evidence that any evidence to be admissible has to be proved in corroboration. It is also the settled principle of evidence that a documentary evidence can be contradicted only by way of admissible documentary evidence no oral evidence can falsify the contents of the documentary evidence produced on record - In the absence thereof the fact remains that there is no corroborative evidence to the loose parchi recovered by the department that to from the premises other than that of the appellant. The same cannot be relied upon - the impugned demand of ₹ 13,74,436/- is opined as wrongly confirmed by Commissioner (Appeals). Demand of ₹ 2,17,790/- as confirmed by the department on the basis of shortages notice in raw-material with appellant during search of his premises vide Panchnama dated 05.02.2015 - HELD THAT - It is observed that there is no evidence on record except for the weighment of raw material. Admittedly the weighment is on average/estimation basis. Admittedly, there is no actual weighment of the goods done by the department. Department has failed to bring on the record the basis of deficiency arrived at by them as far as the alleged shortage of raw material i.e. silicon manganese, aluminium, ferro-silicon and CPC is concerned. This Tribunal has time and again reiterated that for quantification of inputs while proving the observed shortage in quantity of raw-material the same has to be done by a precise method for the purpose. Eye-estimation cannot be the precise method for weighment nor can the average of weight of a smallest quantity of raw-material suffice the purpose. The department has failed to prove convincingly, cogently and in corroboration of the admissible evidence the allegations of clandestine removal of MS Billets by the appellant and even the shortage of raw material available with the appellant. The adjudicating authority below has failed to give the specific details of invoices which are different from the consignment details of the 304.820 MT of Billets as were received by M/s RSPL. In fact, the entire order is silent about the said consignment details also - Appellants are not denied to be the regular supplier of M.S. Billets to M/s RSPL as their law material. In such circumstances, total reliance upon the admission of third-party ignoring the deposition of appellant that entire supply to M/s RSPL is after payment of duty and the respective invoices is an apparent mistake on part of Commissioner (Appeals). Demand set aside - appeal allowed - decided in favor of appellant.
Issues Involved:
1. Allegations of clandestine removal of MS Billets. 2. Shortages in raw materials. 3. Admissibility and reliability of third-party evidence. 4. Validity of the invoices provided by the appellant. 5. Burden of proof on the Revenue. 6. Self-deposit of Central Excise duty by the appellant. Detailed Analysis: Allegations of Clandestine Removal of MS Billets: The department alleged that the appellant clandestinely removed 304.820 MT of MS Billets without payment of Central Excise duty, based on a loose paper (RUD2) recovered from M/s RPSL. The Tribunal observed that this loose paper was the only documentary evidence against the appellant. The Tribunal emphasized that there was no corroborative evidence to support this allegation, rendering the loose paper insufficient to prove clandestine removal. Shortages in Raw Materials: The department noticed shortages in raw materials like silicon manganese, aluminum, ferro-silicon, and CPC during a search of the appellant’s premises. However, the Tribunal noted that the weighment was done on an average/estimation basis rather than actual weighment. The Tribunal held that precise methods are required for quantifying inputs and that eye-estimation or average weight cannot suffice to prove shortages. Admissibility and Reliability of Third-Party Evidence: The Tribunal highlighted that the loose paper and the statement of M/s RPSL’s Manager were third-party evidence. It referenced legal precedents stating that third-party documents and records cannot be used to prove allegations of duty evasion unless corroborated by other evidence. The Tribunal concluded that the department failed to provide sufficient corroborative evidence to support the allegations. Validity of the Invoices Provided by the Appellant: The appellant provided invoices showing delivery of more raw material than alleged to have been clandestinely removed. The Tribunal noted that these invoices were disregarded by the Commissioner (Appeals) based on discrepancies with the loose paper. The Tribunal reiterated the principle that documentary evidence can only be contradicted by other admissible documentary evidence, not by oral evidence or non-admissible documents. Burden of Proof on the Revenue: The Tribunal underscored that the burden of proof lies on the Revenue to prove the genuineness and authenticity of entries in documents seized from third parties. The Tribunal found that the department did not investigate critical aspects such as excess production details, purchase of raw materials, dispatch particulars, realization of sale proceeds, finished product receipt details, and excess power consumption. Self-Deposit of Central Excise Duty by the Appellant: The appellant had deposited the Central Excise duty involved through their CENVAT credit account without protest. The Tribunal held that this deposit did not prove admission of clandestine removal, suggesting that the possibility of departmental persuasion could not be ruled out. Conclusion: The Tribunal concluded that the department failed to convincingly and cogently prove the allegations of clandestine removal and shortages of raw material. It found that the Commissioner (Appeals) relied on non-admissible third-party evidence and ignored the appellant’s documentary evidence. Consequently, the Tribunal set aside the impugned demand of ?13,74,436/- and the penalty, allowing the appeals.
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