2018 (3) TMI 329 - AT - Central Excise

Clandestine removal - M.S. Ingots/risers - CENVAT credit disallowed on alleged shortage of Sponge Iron at the time of physical verification - penalty - Held that - it is evident on the face of record that the alleged shortage of Sponge Iron (raw material) is a matter of wild guess based on eye estimation. There is no calculation sheet or weighment detail on record and/or annexed with the panchnama. As such I hold that the allegation of shortage of raw material/sponge iron is not sustainable. As regards alleged clandestine clearance of ingots is concerned, I find that the allegation of revenue is based mainly on the initial admission of Shri Kulbhushan Jain and further admission of Shri Sanjay Agarwal Director of VVS Alloys Ltd. and Deepak Handa, director of M/s Sarda Steel Ltd. It is found that the statements of these persons are not admissible, as evidence, under provisions of Section 9D of the Act, as the adjudicating authority have failed to examine these persons in the course of the adjudication proceedings nor offered its witness for cross examination, more so inspite of application made by the appellants for the same. Suspicions howsoever strong cannot form evidence for confirming allegation of clandestine removal - The allegation of clandestine production and removal is not established - appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Whether the duty of ?11,01,483/- was rightly confirmed on alleged clandestine clearance of 724.66MT of M.S. Ingots/Risers.
2. Whether Cenvat credit of ?5,37,600/- was rightly disallowed on alleged shortage of Sponge Iron.
3. Confirmation of penalty on the appellants.

Issue-wise Detailed Analysis:

1. Clandestine Clearance of M.S. Ingots/Risers:
The primary issue revolves around the alleged clandestine clearance of 724.66MT of M.S. Ingots/Risers, based on 39 loose slips recovered from the residence of an employee of another group company. The Revenue's allegation is that these slips indicated receipts given by various consignees and were related to clandestine clearances by M/s Sigma Casting Ltd. The slips were allegedly handed over by the Director, and some buyers admitted to receiving goods without Central Excise invoices. However, the appellant contended that the slips did not mention their name, and there was no corroborative evidence such as excessive raw material procurement or electricity usage. The authenticity of the slips was also questioned due to the impracticality of the weighing locations being far from the factory. The statements of certain directors were recorded without allowing cross-examination, which the appellant argued made the evidence unreliable under Section 9D of the Act. The Tribunal found that the statements were inadmissible as evidence since the witnesses were not examined during adjudication, and there was no corroborative evidence of clandestine production and removal. Therefore, the allegation of clandestine clearance was not established, and the demand was set aside.

2. Shortage of Sponge Iron and Disallowance of Cenvat Credit:
The second issue pertains to the alleged shortage of Sponge Iron, leading to the disallowance of Cenvat credit of ?5,37,600/-. The appellant argued that the physical verification was done based on eye estimation without actual weighment, and there was no discrepancy in the stock of finished goods. The Tribunal noted that the stock-taking was done on a mutually accepted manner without dispute at the spot, but the affidavits filed by the appellant indicated that the verification was not properly conducted. The Tribunal concluded that the allegation of shortage was based on suspicion and presumption without corroborative evidence, and thus, the denial of Cenvat credit was set aside.

3. Confirmation of Penalty:
The confirmation of penalty on the appellants was also challenged. Given that the allegations of clandestine clearance and shortage of Sponge Iron were not substantiated with credible evidence, the basis for imposing penalties was invalid. The Tribunal, referencing the ruling in Andaman Timber Industries, emphasized that the denial of cross-examination violated principles of natural justice, rendering the order nullity. Consequently, the penalties were also set aside.

Conclusion:
The Tribunal set aside the impugned order, allowing the appeals filed by the appellants, and granted consequential benefits in accordance with law. The judgment underscored the necessity of credible evidence and adherence to principles of natural justice, particularly the right to cross-examine witnesses whose statements form the basis of allegations.