2015 (5) TMI 568 - AT - Central Excise

Waiver of pre deposit - Clandestine manufacture and removal of goods - captive consumption - Held that - Investigation established that there were serious irregularities in the entries on records maintained at the plant site and excise wing of the appellant proving falsified recording of entries in the central excise records. Production figures appearing in the plant records did not tally with the statutory records maintained under Central Excise Act 1944. Lower quantities of production were recorded in the excise records to discharge small amount of duty liability and evade to the extent of duty stated herein before. Even plant operation days and all technical reports were suppressed. The appellant failed to satisfy to the authority below that its entries in the excise records were correct. Genuinity of sale of iron ore at the railway sliding was failed to be proved before learned adjudicating authority which proved un-accounting of receipt of iron ore at the plant site. Such act of the appellant paved the way to scientifically fabricate all other records to show production of lower quantity of blooms, billets and ingots compared to higher quantity thereof manufactured. Entire plea of appellant as to sale of iron ore, arise of fines etc was proved to be false. The material fact, outcome of investigation, gravity of allegation and strength of evidence on record prima facie show that interest of revenue has been prejudiced by the appellant causing loss to it to the extent aforesaid. This calls for predeposit to work out an interim modality since balance of convenience tilts in favour of Revenue and without pre-deposit order; irreparable injury may be sustained by Revenue - keeping in view prejudice caused to Revenue, Appellant is directed to deposit ₹ 12 crores within four weeks of receipt of this order and make compliance - Partial stay granted.

Issues Involved:
1. Clandestine manufacture and removal of sponge iron and other products.
2. Suppression of receipt and consumption of raw materials.
3. Discrepancies in production records.
4. Alleged evasion of excise duty.
5. Shortage of stock during physical verification.
6. Plea for waiver of pre-deposit.

Detailed Analysis:

1. Clandestine Manufacture and Removal:
The appellant was accused of clandestine manufacture and removal of sponge iron for captive consumption in the manufacture of blooms, billets, and ingots, evading excise duty amounting to Rs. 16,92,11,104/-. The investigation revealed that the appellant used unaccounted iron ore for the clandestine production of sponge iron, which was then used to manufacture and remove blooms, billets, and ingots without paying the due excise duty.

2. Suppression of Receipt and Consumption of Raw Materials:
The investigation found that the appellant suppressed the receipt of 2,76,896.820 MT of iron ore, which was not recorded in the statutory records. This unaccounted iron ore was allegedly used for the clandestine manufacture of sponge iron, which was then used to produce blooms, billets, and ingots. The investigation relied on various discrepancies in records, including differences in the daily operation reports and statutory records, indicating the suppression of production.

3. Discrepancies in Production Records:
The investigation discovered significant discrepancies in the production figures of sponge iron recorded in different places. The daily operation reports from the sponge iron division (SID) showed higher production figures than those recorded in the excise division. Various pieces of evidence, including reports, logbooks, and computer-generated sheets, supported the claim of suppressed production and manipulation of records.

4. Alleged Evasion of Excise Duty:
The investigation alleged that the appellant systematically suppressed the production of sponge iron and the subsequent production of blooms, billets, and ingots to evade excise duty. The suppressed production was calculated to be 2,69,603 MT of sponge iron, leading to the clandestine removal of 2,35,336 MT of blooms, billets, and ingots without payment of duty. The duty evaded was calculated based on the suppressed production figures and the assessable value of the goods.

5. Shortage of Stock During Physical Verification:
During a physical verification conducted on 01.02.2005, a shortage of 5007.290 MT of sponge iron was detected in the appellant's factory. This shortage was used to infer that the sponge iron was captively consumed for the unaccounted production of blooms, billets, and ingots, which were removed without payment of excise duty. The shortage of stock was calculated to result in a duty evasion of Rs. 94,59,415/- and education cess of Rs. 1,89,188/-.

6. Plea for Waiver of Pre-Deposit:
The appellant argued for a waiver of the pre-deposit requirement, claiming that the allegations were baseless and that they had already deposited significant amounts towards the duty and education cess. The appellant contended that the entire electricity consumed was not solely for the production of blooms, billets, and ingots, and that the allegations of unaccounted receipt of iron ore and production of lower quantities of sponge iron were unfounded.

Tribunal's Decision:
The Tribunal considered the gravity of the allegations and the strength of the evidence on record, which prima facie showed that the appellant's actions had prejudiced the revenue. The Tribunal directed the appellant to deposit Rs. 12 crores within four weeks and stay the realization of the balance amount of duty and penalty during the pendency of the appeal or for six months, whichever was earlier.

Conclusion:
The judgment highlighted significant issues of clandestine manufacture, suppression of raw material receipts, discrepancies in production records, and evasion of excise duty. The Tribunal's decision emphasized the need for a substantial pre-deposit to safeguard the revenue's interests while allowing the appellant to contest the allegations in the appeal process.

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