2017 (5) TMI 1336 - AT - Central Excise

Levy of duty and penalty - clandestine manufacture and removal - issuance of parallel invoices - Held that - no search have been carried out in the premises of M/s SCL. All the documents, pen drive, computer hard disc, etc. on the basis of which demand had been raised, were recovered from the factory & office of M/s PPPL. The proposed demand had been mainly confirmed on the ground that the Director of appellant-M/s SCL have admitted the fact of clandestine removal, to M/s PPPL. The case of the Revenue is based solely on the basis of third-party records which are mainly the computer printouts. No evidence have been brought on record by Revenue in terms of Section 36B (2) of the Central Excise Act, which requires that for admissibility of data obtained from microfilms, computer printouts, etc., satisfaction have to be recorded. Revenue have failed to establish certain fundamental criteria for the allegation of clandestine removal, as there is no tangible evidence of clandestine manufacture by these appellants, and the whole demand is based on mere assumptions and presumptions. There is no investigation with respect to usage of unaccounted or excess raw materials, discovery of any finished goods outside the factory, use of electricity far in excess than what is necessary for manufacture of goods, otherwise manufactured and validly cleared on payment of duty, proof of actual transportation of goods etc. Inferences cannot be drawn about such clearances merely on the basis of notebooks, diaries privately maintained or some computer data recovered from pen drives not maintained in the ordinary course of business. Further, the impugned orders are vitiated for not giving opportunity of cross-examination, including examination of the witnesses of the Revenue. The demand being mainly based on some private records, etc., maintained by third party - M/s Panchwati Prayogshala for their internal control cannot be the sole basis for raising demand against M/s SCL - the demand is not sustainable against M/s SCL - appeal allowed. So far M/s Panchwati Prayogshala Private Limited & its Director Mr. Pankaj Goel are concerned, the matter been settled before the Settlement Commission, as noticed hereinabove and accordingly I set aside the penalties. Appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Levy of duty/penalty for alleged clandestine manufacture and removal of excisable goods.
2. Misuse of area-based exemption.
3. Validity of evidence obtained from third-party documents and electronic devices.
4. Admissibility and corroboration of evidence.
5. Right to cross-examination.
6. Settlement of dispute before the Settlement Commission.

Detailed Analysis:

1. Levy of Duty/Penalty for Alleged Clandestine Manufacture and Removal of Excisable Goods:
The appellants challenged the levy of duty/penalty for alleged clandestine manufacture and removal of Digestive Tablets & Ayurvedic Medicines without payment of Central Excise duty. The investigation by DGCEI Officers led to the seizure of excisable goods and incriminating documents, pen drives, and CPUs from the premises of M/s PPPL. The statements of various individuals, including the Director of M/s PPPL, confirmed unaccounted production and clearances. The Show Cause Notice demanded Central Excise duty of ?16,30,613/- from M/s SCL for the clearance of packing material without payment of duty.

2. Misuse of Area-Based Exemption:
M/s PPPL - Roorkee was alleged to have misused the area-based exemption provided to industrial units in Uttarakhand. The investigation revealed that M/s PPPL issued parallel invoices and destroyed the original ones after the delivery of goods. The statements of key personnel confirmed the practice of issuing and destroying invoices to evade duty.

3. Validity of Evidence Obtained from Third-Party Documents and Electronic Devices:
The demand of duty was primarily based on documents, pen drives, and hard discs recovered from M/s PPPL's premises. The appellants contended that demand cannot be confirmed based on third-party documents. The Tribunal referred to various rulings, including Sakeen Alloys Pvt. Ltd. and Arya Fibres Pvt. Ltd., which established that charges of clandestine removal cannot be proved solely on third-party documents.

4. Admissibility and Corroboration of Evidence:
The Tribunal found that the data obtained from the pen drive and other electronic devices lacked authenticity and were not maintained in the ordinary course of business as required by Section 36B of the Central Excise Act. The Tribunal emphasized the need for corroborative evidence to support the allegations of clandestine removal. The Tribunal noted the absence of tangible evidence such as unaccounted raw materials, excess electricity usage, or proof of transportation of goods.

5. Right to Cross-Examination:
The appellants requested cross-examination of witnesses, including those who witnessed the recovery of documents and maintained the records. The Tribunal found that the adjudicating authority failed to provide an opportunity for cross-examination, violating the provisions of Section 9D of the Central Excise Act. The Tribunal highlighted the importance of cross-examination to establish the genuineness and correctness of the evidence.

6. Settlement of Dispute Before the Settlement Commission:
M/s PPPL and its Directors moved before the Settlement Commission, which settled the dispute for the period from 01/04/2011 to 14/07/2011. The Settlement Commission determined the Central Excise duty at ?38,96,729/- with interest and imposed a penalty of ?2 lakhs on M/s PPPL. The Tribunal acknowledged the settlement and set aside the penalties imposed on M/s PPPL and its Director, Mr. Pankaj Goel.

Conclusion:
The Tribunal allowed the appeals of M/s SCL and its Director, Mr. Surendra Kumar Gupta, setting aside the impugned orders against them due to the lack of corroborative evidence and violation of procedural rights. The penalties imposed on M/s PPPL and its Director were also set aside, considering the settlement before the Settlement Commission. All four appeals were allowed, providing consequential benefits to the appellants.