2014 (7) TMI 314 - AT - Central Excise

Clandestine manufacture and removal of MS Ingots and MS re-rolled products - suppression of production - denial of cross-examination - Held that - entries made in the private record relates to the clandestine manufacture and supply of finished goods without payment of duty. These entries have been corroborated by the authors that is Shri Thorve and Shri Yadav and confirmed by the Directors also. It is a settled position in law that admitted facts need not be proved - Revenue has discharged this burden more than adequately. Thereafter, the burden to prove the contrary shifts to the appellant. The decision of the Hon ble Bombay High Court in Phoenix Mills Ltd. 2004 (1) TMI 89 - HIGH COURT OF JUDICATURE AT BOMBAY refers. However, appellants have not produced any evidence to rebut the Revenue s case. Therefore, the case of clandestine production and removal without payment of duty stands clearly established. whether the appellant would be eligible for cum-duty benefit, inasmuch as they have not collected excise duty separately - Held that - appellants have cleared the goods without payment of duty and without the cover of any Central Excise invoices and the transactions were made in cash. Thus, there is no documentary evidence indicating that the price of the goods included the excise duty payable. Therefore, as per the decision of the Hon ble Apex Court in the case of Amrit Agro Industries Ltd. (cited supra), the question of exclusion of duty element will not arise for determination of value under Section 4(4)(d)(ii) of the Central Excise Act, 1944 - Decided against assessee.

Issues Involved:
1. Denial of cross-examination.
2. Allegation of clandestine manufacture and removal of goods.
3. Eligibility for cum-duty benefit.
4. Eligibility for Cenvat credit.
5. Penalties imposed on the appellants.

Detailed Analysis:

1. Denial of Cross-Examination:
The appellants argued that the denial of cross-examination of key witnesses Shri Pandurang V Thorve and Shri Ashok Kumar Yadav caused prejudice against them. The Tribunal, however, found that the entries in the private records maintained by these individuals were corroborated by the statements of the Directors and other corroborative evidence, including confirmations from buyers and raw material suppliers. Thus, the denial of cross-examination did not prejudice the appellants as there was substantial corroborative evidence supporting the findings. The Tribunal cited various legal precedents to support the view that cross-examination is not an absolute right and is not necessary when sufficient corroborative evidence exists.

2. Allegation of Clandestine Manufacture and Removal of Goods:
The Tribunal upheld the allegations of clandestine manufacture and removal of MS Ingots and MS Bars based on private records, corroborative statements from the Directors, buyers, and raw material suppliers, and voluntary payment of duty by the appellants. The Tribunal noted that the private records clearly indicated unaccounted production and removal of goods without payment of duty, and the statements of the involved parties confirmed these findings. The Tribunal relied on legal precedents establishing that confessional statements recorded before Central Excise officers are admissible evidence and that the burden of proof shifts to the appellants once the Department establishes its case with a high degree of probability.

3. Eligibility for Cum-Duty Benefit:
The appellants claimed that the consideration received should be treated as cum-duty. The Tribunal rejected this claim, stating that since the goods were cleared without payment of duty and without proper documentation, there was no evidence to indicate that the price included excise duty. The Tribunal referred to the Supreme Court's decision in Amrit Agro Industries Ltd., which held that unless it is shown that the price includes excise duty, the question of excluding the duty element does not arise.

4. Eligibility for Cenvat Credit:
The appellants argued that they should be eligible for Cenvat credit on the duty paid by RIMPL on MS Ingots used by ARMPL. The Tribunal found this claim premature and unsustainable because Cenvat credit can only be claimed when duty liability is discharged and proper documentation exists, which was not the case here.

5. Penalties Imposed on the Appellants:
The Tribunal noted that Shri Ramdas Shivram Sangle had expired, and therefore, the proceedings against him abated, and the penalty of Rs. 10 lakhs imposed on him was set aside. However, the Tribunal upheld the penalties imposed on the other appellants, finding no infirmity in the impugned order.

Conclusion:
The Tribunal dismissed the appeals, upholding the impugned order in its entirety, except for the abatement of the penalty imposed on the deceased Director. The judgment emphasized the substantial corroborative evidence supporting the findings of clandestine manufacture and removal of goods without payment of duty and the lack of prejudice caused by the denial of cross-examination.

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