2023 (12) TMI 434 - AT - Central Excise

Incorrect availment of CENVAT Credit - inputs - SS Patta/Patti, SS Circle, SS Flat, SS sheet etc. - denial of credit on the ground that Appellant melts its inputs and produces SS Billets/Wires/rods/bars etc. and there is no proof that the Appellant uses SS Patta/Patti, SS Circle, SS Flat, SS Sheet (assuming it to be virgin material) - HELD THAT - In the facts and circumstances of the present case, it must be held that the Appellant had in fact received SS waste and scrap supplied to them through dealers, on documents, which otherwise show that it was seconds/defective etc. and had correctly availed Cenvat Credit thereon, in absence of any cogent evidence regarding either diversion of such goods by suppliers or replacement thereof by the Appellant from any other local source - Also, when it comes to the issue of availing Cenvat Credit on MS scrap, the allegation is that the domestic scrap was received by the Appellant Company on which no Central Excise duty would have been paid, whereas the credit was availed on basis of invoices raised by the dealers. There revenue department has doubted the factum of dealers themselves receiving duty paid MS scrap. The cross examination of various witnesses was granted to the Appellant, wherein it transpires that most witnesses have either stated that they do not remember the details of the transaction or that the statements did not correctly bring out the factual matrix involved, leading to the evidentiary value of the oral evidences to be diminished. In certain occasions, the contradicting stand taken by some witnesses in first retracting their statements and then during the course of later proceedings stating that they mistakenly retracted it, leading to strong suspicion on the genuineness of the manner in which the statements were recording and entire investigation was done. Even in case of MS scrap, there is no allegation or proof of flow back of amounts by anyone to the Appellant as well. There is no evidence of procurement of domestic scrap in cash from open market as well. There is no evidence of sale of duty paid scrap by Dealers in question, to any third party in cash as well. The factum of duty paid goods being cleared by manufacturers and receipt of proper invoice by the Appellant are not in dispute as well - The 9078 MT of MS scrap was procured by the dealers and as involved in the present case, if domestic scrap was procured locally to substitute this, not a single supplier for domestic scrap (which presumably was sent to the Appellant) is identified by revenue. Such huge quantity of MS scrap if was sold to other buyers by the Dealers, again it is not shown to whom it was sold as well. There is no proof of receipt or payment for domestic scrap by any person to any other person as well. The revenue has not been able to substantiate its case, except raising allegations based on mere conjectures and surmises, that the Appellant had not received MS and SS scrap through the dealers. There is no other corroborative evidence to substantiate such serious charges and the demand on this count as such must be quashed and set aside. The impugned orders are set aside - Appeal allowed.

Summary

Issues Involved:
1. Whether M/s. Panchmahal Steel Ltd. correctly availed Cenvat Credit on inputs like waste/seconds of SS Patta/Patti, SS Circle, SS Flat, SS sheet, etc.
2. Whether M/s. Panchmahal Steel Ltd. correctly availed Cenvat Credit on duty-paid inputs like MS scrap.

Summary:

Issue 1: Cenvat Credit on SS Patta/Patti, SS Circle, SS Flat, SS Sheet
The main contention was whether M/s. Panchmahal Steel Ltd. had received the SS articles for which they availed Cenvat Credit. The Revenue denied credit based on the assumption that the appellant used virgin material rather than off cuts/defective/seconds/waste SS articles. The impugned order confirmed the demand and imposed penalties on the appellant and various suppliers. The appellant argued that documentary evidence supersedes oral evidence and that they had received and used the defective material in their manufacturing process. The Tribunal noted that the lower authority denied cross-examination of witnesses, making the statements inadmissible. The Tribunal found no evidence of the alleged substitution of prime material with scrap and no proof of flow back of amounts. The Tribunal concluded that the appellant correctly availed Cenvat Credit on SS scrap and set aside the impugned order.

Issue 2: Cenvat Credit on MS Scrap
The dispute involved whether the appellant correctly availed Cenvat Credit on MS scrap, which was allegedly not received. The Revenue's presumption was based on a single instance where domestic scrap was found in the appellant's factory. The appellant argued that they had not availed any credit on the domestic scrap and that the impugned order generalized this single instance to deny credit for all past procurements. The Tribunal found that the Revenue did not substantiate its case with evidence and relied on mere conjectures. The Tribunal held that the appellant correctly availed Cenvat Credit on duty-paid MS scrap and set aside the impugned order.

Conclusion:
The Tribunal allowed all the appeals, setting aside the impugned orders and granting consequential relief to the appellants. The Tribunal emphasized the lack of corroborative evidence and the inadmissibility of statements obtained without cross-examination.