2014 (3) TMI 453 - AT - Central Excise

Availment of CENVAT Credit - Whether the cenvated inputs were actually exchanged between the three units without reversal of equivalent credit or the same were sold out to some other persons - allegation of clandestine removal - Revenue neutrality - Held that - it is not established by the investigation that the cash seized represent the sale proceeds of clandestinely removed inputs/ finished goods either by way of a statement or by a documentary evidence. On presumptions alone it cannot be held that cash seized from the residential premises represent the sale proceeds of clandestinely removed inputs/ goods in the absence of any affirmative tangible and positive evidence. It has not been disputed by the appellants that the inputs have not been removed as such without reversal of cenvat credit contrary to what is prescribed under Rule 3(5) of the Cenvat Credit Rules, 2004. Appellants are established registered units and cannot plead ignorance of law. It is upheld that appellants are liable to penalties under Cenvat Credit Rules, 2004 for removing the cenvatable inputs without reversing the corresponding cenvat credit at the time of removal of inputs as such - Matter remanded for de-novo consideration - Decided partly in favour of assessee.

Issues Involved:
1. Exchange of raw materials without reversing Cenvat credit.
2. Confiscation of cash amounting to Rs. 30,62,500/-.
3. Alleged clandestine removal of finished goods involving Central Excise duty of Rs. 36,18,970/-.
4. Imposition of penalties under Rules 25 and 26 of the Central Excise Rules, 2002.

Issue-wise Detailed Analysis:

1. Exchange of Raw Materials Without Reversing Cenvat Credit:
The appellants, SGS, SOG, and TGIPL, exchanged raw materials without reversing the proportionate Cenvat credit as required under the Cenvat Credit Rules, 2004. The removals were recorded in private notebooks. The main issue was whether these cenvated inputs were exchanged between the units or sold to third parties. The Tribunal observed that there was no evidence to suggest that the inputs were diverted elsewhere. The concept of 'Revenue neutrality' was upheld, as the recipient units were eligible for equivalent Cenvat credit. The Tribunal relied on precedents, including the case of CCE Pune vs. Coca-Cola India Pvt. Limited, to support this view. Consequently, the appeals on this issue were allowed.

2. Confiscation of Cash Amounting to Rs. 30,62,500/-:
The cash seized from the residential premises of Shri Bharat Vyas was confiscated under Section 121 of the Customs Act, 1962. The appellants argued that the cash was reflected in their cash book and other firm records. The Tribunal noted that there was no affirmative evidence to prove that the cash represented the sale proceeds of clandestinely removed goods. The case of Pandit D.P. Sharma vs. CCE was cited, emphasizing that the onus to prove such a connection lies with the Revenue. The confiscation was set aside, and the cash was ordered to be released.

3. Alleged Clandestine Removal of Finished Goods:
The Adjudicating authority confirmed a duty demand of Rs. 36,18,970/- on alleged clandestine removal, stating that no defense was provided by the appellants. However, the Tribunal found that the appellants had indeed submitted detailed replies to the show cause notice. There was no evidence of finished goods being seized in transit or at buyers' premises, nor were there any statements from buyers confirming receipt of goods without payment of duty. The matter was remanded back to the Adjudicating authority for a reasoned order after affording the appellants a personal hearing.

4. Imposition of Penalties:
Penalties were imposed under Rules 25 and 26 of the Central Excise Rules, 2002. The Tribunal upheld the penalties for removing cenvatable inputs without reversing the corresponding Cenvat credit, as required under Rule 3(5) of the Cenvat Credit Rules, 2004. However, the penalties on other appellants were set aside. A penalty of Rs. 50,000/- each was imposed on SGS, SOG, and TGIPL under Rule 15 of the Cenvat Credit Rules, 2004.

Conclusion:
The appeals were allowed on the grounds of 'Revenue neutrality' and the confiscation of cash was set aside. The issue of clandestine removal of finished goods was remanded for further consideration. Penalties were modified, with specific penalties imposed on SGS, SOG, and TGIPL. The judgment emphasized the importance of substantial evidence and adherence to procedural fairness in adjudicating such matters.

← Previous Next →