2017 (11) TMI 1172 - AT - Central Excise

Clandestine removal - availing Cenvat credit without bringing inputs in their factory - 102.970 MTs of finished goods - documents seized from the transporter - Held that - No investigation has been conducted at the end of M/s. Anupam Ispat Udyog to ascertain the truth. In that circumstances, merely mentioning AIU on the documents seized from the transporter, the demand of duty cannot be demanded from the appellant - demand set aside. 114.830 MTs of finished goods - clearance of goods against parallel invoices - Held that - no investigation was conducted at the end of the buyer or the transporter to ascertain the fact whether on the strength parallel invoices, any goods have been transported or not? - also, the parallel invoices are copy of each other. Therefore, it cannot be alleged that the appellant is clearing the goods on the strength of parallel invoices - demand set aside. Demand confirmed on the strength of debit notes - Held that - In the absence of any positive evidence on record by the Revenue, the demand on the basis of this allegation is not sustainable - demand set aside. Demand confirmed on the basis of the records seized from transporter viz. M/s. Super Handling Company showing the goods has been cleared without duty paying documents - Held that - seized documents neither showing the date of goods sold nor the date has been mentioned to whom the goods has been sent and the appellant had not admitted those documents no enquiry has been conducted from M/s. Super Handling Company where these goods have been delivered or whether these goods have been loaded from the factory of the appellant without cover of invoice - demand set aside. Demand confirmed on the basis of the production shown in private records but not recorded in RG-1 register - Held that - no effort has been made by the Revenue for correlation of the payments made to the four labour contractors and merely on the basis of the 3rd party evidence, the demand against the appellant is not sustainable - demand set aside. Demand confirmed on account of excess finished goods found and detected shortage of inputs at the time of stock taking during the search - Held that - There is no weighment detail has been produced by the Revenue how the weighment has been done. The weighment has been done on the basis of eye estimation and on eye estimation, the shortage or excess of goods cannot be determined - demand set aside. Demand confirmed on the basis of debit notes on which duty has not been paid - Held that - the debit notes have been issued for payment of interest. Revenue sought to include the payment of interest in the assessable value. The said issue has not been disputed by the ld. Counsel for the appellant being the issue of valuation - demand confirmed. Demand confirmed on account of invoices issued to consignee for availing Modvat credit without supply of inputs - Held that - no investigation has been conducted at the end of Bhilai Steel Plant to ascertain the fact whether they have sold the goods to the appellant through the truck in question or from the transporter whether they have changed the truck during the transportation. In that circumstances, the Cenvat credit cannot be denied to the appellant - demand set aside. Demand confirmed for removal of inputs without reversal of credit - Held that - on going through the documents placed before me, it is not coming out whether G stands for gross weight or not. If G stands for particular truck as gross weight then for the other trucks, why it is not mentioned as G - demand confirmed. Demand confirmed for removal of MS flat cuttings without payment of duty for the said demand - Held that - As the appellant is not contesting. Therefore, the said demand of ₹ 1,629/- is confirmed. Denial of CENVAT credit - denial on the ground that during the visit, the raw material was not found in the factory premises of the appellant - Held that - the appellant has used the said raw material in manufacturing of their final goods. In that circumstances, the Cenvat credit cannot be denied to the appellant in the absence of any contrary evidence, therefore, Cenvat credit is allowed to the appellant - credit allowed - penalty also set aside. Appeal allowed in part.

Summary

Issues: Appeal against confirmed duty demand, interest, and penalties based on discrepancies found during investigation.

Analysis:
1. Demand on 102.970 MTs of finished goods: The demand of duty was confirmed based on documents seized from a transporter indicating goods cleared without payment. The appellant provided evidence from another company certifying ownership of the goods. Lack of investigation at the other company's end led to setting aside this demand.

2. Demand on 114.830 MTs of goods: Allegations of clearing goods against parallel invoices were refuted by discrepancies in signatures on the invoices. Lack of investigation at the buyer or transporter's end to verify the parallel invoices led to setting aside this demand.

3. Demand based on debit notes: A demand was confirmed based on debit notes indicating commission for different goods. The appellant explained the error in the notes, and lack of investigation at the buyer's end led to setting aside this demand.

4. Demand based on records from transporter: Lack of details in the seized documents regarding goods sold without duty payment led to setting aside a demand of duty.

5. Demand based on private records: The demand was sought to be confirmed using private records of labor contractors. Lack of correlation of payments made to contractors led to setting aside this demand.

6. Excess finished goods and detected shortage of inputs: Lack of proper weighment details led to setting aside demands related to excess goods and input shortages found during stocktaking.

7. Demand based on debit notes for interest: The demand confirmed for interest payment in debit notes was upheld as a valuation issue.

8. Demand for Modvat credit without supply of inputs: Lack of investigation at the supplier's end regarding the transfer of goods led to setting aside this demand.

9. Removal of inputs without reversal of credit: Lack of clarity on weight details led to confirming a demand against the appellant.

10. Removal of MS flat cuttings without payment: The uncontested demand for removal of MS flat cuttings without duty payment was confirmed.

11. Cenvat credit denial on raw material: Cenvat credit was allowed as the raw material was stored in an adjoining godown and used in manufacturing final goods.

Final Order: Certain demands were confirmed, along with interest and penalties, on the appellant. Penalties on co-appellants were set aside. Appeals and cross-objections were disposed of accordingly.