2014 (7) TMI 532 - AT - Central Excise

Cenvat Credit - Availing credit without receipt of inputs being pet coke - manufacturing of Cement and Clinker - the case of the Revenue is mainly based on two evidences i.e. the Test Report of NSIC and the statements of suppliers of Pet coke and of the out-station buyers of Pet coke who were allegedly interested in only getting Pet coke without any Cenvatable invoice. - Confiscation of goods - Redemption fine - Penalty - Held that - having rejected cross-examination, it was not open to the Commissioner to place reliance upon the statements. Revenue has failed to bring anything on record to clarify which specific invoices were given to New Kishan Cement and Major Cement without supply of pet coke . - the allegation of non-receipt of pet coke from Radhey Vyapar Ltd, is totally presumptuous. The inference drawn in the impugned order regarding non-receipt of pet coke, therefore, is not supported by the evidence on record. Regarding non-receipt of pet coke from Jayshree Vyapar Ltd, we find that the only documentary evidence is in the form of Daily Dispatch Register prepared by Pratham Transport, Jamnagar. We find from the record that entries made in the Daily Dispatch Register shows diversion only in respect of 8 trucks. The said entries show supplies being made to Major Cement and not to New Kishan Cement. Supplies made to New Kishan Cement cannot be disputed in any event. However, while examining the issue as to whether the entries made in the Daily Dispatch Register with regard to supplies made to Major Cement could be accepted as correct, we find that there is no tangible evidence to support the said entries. Moreover, it is not the case of the Revenue that the said entries were made under the instruction of New Kishan Cement and Major Cement. New Kishan and Major Cement have absolutely no control over the said records. Therefore, we accordingly hold that the allegation of only receiving invoices from Radhey Vyapar Ltd without physically receiving pet coke, cannot be sustained. Commissioner while ordering for confiscation, imposing redemption fine and penalty, in connection with the Show Cause Notice dated 21.10.08, has not entered any categorical finding to sustain the said order - Impugned order is set aside - Decided in favour of assessee. Issue of Corrigendum show cause notice after 2 years to deny the test report - Held that - Corrigendum to Show Cause Notice (as referred hereinabove) was issued almost after a period of two years. Moreover, the Corrigendum was issued for deleting the para on which New Kishan Cement and Major Cement was strongly relying upon. It appears as though the corrigendum was issued to defeat the stand taken by New Kishan Cement and Major Cement. Issuance of Corrigendum at a belated stage also fortifies the stand of New Kishan Cement and Major Cement that the test report of the samples drawn on 26.4.08 was apparently in their favour. - Decided in favor of assessee.

Issues Involved:
1. Alleged wrongful availment of Cenvat Credit by New Kishan Cement and Major Cement.
2. Validity and reliability of the test reports of pet coke samples.
3. Admissibility and credibility of electronic evidence.
4. Denial of cross-examination requests.
5. Imposition of penalties and revocation of Central Excise Registration.

Detailed Analysis:

1. Alleged wrongful availment of Cenvat Credit by New Kishan Cement and Major Cement:
The appeals were filed against orders denying Cenvat Credit on the grounds that New Kishan Cement and Major Cement availed credit on invoices of pet coke without physically receiving it. The Revenue alleged that the companies showed receipt of pet coke but actually received coke dust or merely invoices without the actual goods.

2. Validity and reliability of the test reports of pet coke samples:
The test report dated 7.5.08 from NSIC concluded that the samples were coke dust, not pet coke. However, New Kishan Cement and Major Cement argued the test report was unreliable due to improper sampling and testing methods. They highlighted discrepancies, such as the absence of sulfur level and calorific value tests, which are crucial for identifying pet coke. The tribunal found that the sampling method did not comply with BIS standards, and the Commissioner's reliance on the test report was flawed. The tribunal also noted the suspicious deletion of references to samples drawn on 26.4.08 from the show cause notice, which suggested possible concealment of favorable test results for the appellants.

3. Admissibility and credibility of electronic evidence:
The Revenue relied on data retrieved from the hard disk of Kathiawad Industries to support their case. The tribunal found that the electronic evidence was tampered with, as captions were inserted into the original data. Additionally, the conditions under Section 36B(2) of the Central Excise Act, which govern the admissibility of computer printouts, were not met. The tribunal held that the tampered data and non-compliance with statutory requirements rendered the electronic evidence inadmissible.

4. Denial of cross-examination requests:
The appellants requested cross-examination of the persons whose statements were relied upon by the Revenue. The Commissioner rejected these requests without providing reasons. The tribunal referred to judicial precedents, emphasizing the mandatory nature of cross-examination under Section 9D of the Central Excise Act unless exceptional circumstances justify its denial. The tribunal concluded that the Commissioner's refusal to allow cross-examination was unjustified and that reliance on such statements without cross-examination was improper.

5. Imposition of penalties and revocation of Central Excise Registration:
The Commissioner imposed penalties and revoked the Central Excise Registration of several parties. The tribunal found that the penalties were based on flawed evidence and unsupported allegations. It also held that the revocation of registrations was unjustifiable without establishing any offense under the Central Excise Act. Consequently, the tribunal set aside the penalties and revocations.

Conclusion:
The tribunal allowed the appeals filed by New Kishan Cement and Major Cement, setting aside the impugned orders dated 25.3.13 and 31.03.13. The tribunal also set aside the penalties imposed on other parties and the revocation of Central Excise Registration for Hindustan Exports, Jayshree Vyapar Ltd, Karan Chemicals, and Karan Marketing. The decision underscored the importance of adhering to procedural fairness, proper evidence handling, and the right to cross-examination in adjudicatory processes.

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