2017 (3) TMI 1149 - AT - Central Excise

Clandestine removal - excesses and shortages of stock - demand - Held that - the lower authorities have gone by the sole fact of detection by the sales tax officers. There is no independent investigation by the Central Excise officers leading to the fact of clandestine manufacture and the removal of the final product - Their being no independent evidence produced by the Revenue worthy of reliance I find no merits in the Revenues findings of clandestine manufacture. CENVAT credit - duty paying documents - Held that - denial of credit on the basis of certain discrepancies in the invoices especially when the Revenue is not disputing the receipt of inputs and their duty paid character cannot be upheld - In any case the appellant have also got the defects removed and have rectified the defects in which case the procedural lapse if any have also been smoothened. Appeal allowed - decided in favor of appellant.

Summary

Issues involved:
1. Allegations of clandestine removal of goods based on sales tax officers' visit.
2. Denial of cenvat credit due to discrepancies in invoices.

Analysis:

Issue 1: Allegations of clandestine removal of goods based on sales tax officers' visit

The appellant, engaged in manufacturing MS bars and rods, faced allegations of clandestine removal of goods after excess stock was found during a visit by Sales Tax officers. The appellant accepted the excess stock and deposited a sum under the Composition Scheme. Subsequently, Central Excise officers found discrepancies during their visit. The Revenue initiated proceedings based on the excess bars detected earlier. The appellant contested the allegations, stating the excesses were not weighed, and they planned to file a review petition. The lower authorities upheld the demands and penalties. The appellant argued that the confirmation of demand solely based on the Sales Tax officers' visit without concrete evidence of clandestine removal was unjustified. Citing precedents, the appellant emphasized the need for positive evidence to prove clandestine activities. The Tribunal agreed, noting the lack of independent investigation by Central Excise officers and the appellant's rejection of the discrepancies found by Sales Tax officers. Consequently, the Tribunal found no merit in the Revenue's allegations of clandestine manufacture and set aside the impugned order.

Issue 2: Denial of cenvat credit due to discrepancies in invoices

The appellant also faced denial of cenvat credit based on discrepancies in invoices from a dealer. The appellant argued that since they received the inputs and there was no dispute regarding duty payment, denying credit for procedural lapses in the invoices was unjustified. The appellant rectified the defects in the invoices and presented them for regularization. The Tribunal concurred, stating that denying credit over procedural issues when the receipt of inputs and duty payment were not in question was unwarranted. The Tribunal noted that the appellant rectified the defects, smoothing out any procedural lapses. Consequently, the Tribunal allowed the appeal, providing consequential relief to the appellants.

In conclusion, the Tribunal ruled in favor of the appellants, setting aside the demands and penalties related to both the allegations of clandestine removal of goods and the denial of cenvat credit. The judgment emphasized the need for concrete evidence to support allegations and highlighted the importance of rectifying procedural lapses to ensure credit availability.