2018 (4) TMI 415 - AT - Central Excise

Clandestine removal - issue emerged from Difference of Opinion - Whether the findings that there are not sufficient evidences available to establish unaccounted manufacture and clandestine removal of the goods; and the demand of duty along with interest and imposition of equivalent penalty on the appellant, M/S. Stovekraft Pvt. Ltd., therefore, are required to be set aside as held by Member(Judicial)? Held that - In the instant case, it appears that the working of both the business entities was not in a proper manner. There was interchangeable in the brand names, and sometimes, the goods including the raw material too. As per the statement of Shri S.N. Lokesh, the goods are inter changeable at every stage. But at the cost of the repetition, both were separate legal entities during the period under consideration. The retraction is of course is in mild form by stating that the earlier statements were obtained under pressure. When there is a retraction of the statement of key persons, it was expected from the Department to collect some corroborative evidences. The same was not collected - it cannot be agreed that the statement need no further corroborated evidence especially when it was retracted. The Department has not collected the sufficient/corroborative evidence. Hence, there is no justification to raise the demand in the hands of SKPL. In view of the majority order, the impugned order, confirming the demand of duty against M/S. Stovekraft Pvt. Ltd. and imposing penalty upon them as also on Shri Rajendra J. Gandhi, Managing Director, is set aside. Appeal allowed.

Summary

Issues Involved:
1. Unaccounted manufacture and clandestine removal of goods.
2. Validity of CENVAT credit availed/utilized.
3. Imposition of penalty on the appellant, Shri Rajendra J. Gandhi.

Detailed Analysis:

1. Unaccounted Manufacture and Clandestine Removal of Goods:
The primary issue was whether there was sufficient evidence to establish unaccounted manufacture and clandestine removal of goods by M/S. Stovekraft Pvt. Ltd. (SKPL). The Member(Judicial) found that there were not sufficient evidences, whereas the Member(Technical) held the opposite view. The investigation began with a search by the Directorate of Revenue Intelligence (DRI) and subsequent seizure of pen drives and hard disks containing incriminating data. The statements of key individuals, including Shri S.N. Lokesh and Shri Rajendra J. Gandhi, were pivotal. However, the retraction of statements by Shri Rajendra J. Gandhi and the lack of corroborative evidence led to the conclusion that the clandestine removal was not sufficiently proven. The tribunal noted that the Department's reliance on the pen drives and statements without further corroboration was inadequate, especially since the statements were retracted. Consequently, the demand of duty along with interest and penalty on SKPL was set aside.

2. Validity of CENVAT Credit Availed/Utilized:
The second issue was whether the CENVAT credit of ?85,22,040/- availed/utilized by SKPL was based on valid invoices with receipt of inputs or on fake invoices without receipt of inputs. The Judicial Member held that the credit was valid, while the Technical Member disagreed. The tribunal observed that if duty was paid on the finished goods, then CENVAT credit should be allowed on the raw materials. The Department had accepted the duty payment without objection, implying that the raw materials were indeed received. The tribunal concluded that the allegation of receiving only bills without raw materials was unsustainable. Thus, the demand for CENVAT credit along with interest and penalty was set aside.

3. Imposition of Penalty on Shri Rajendra J. Gandhi:
The third issue was whether the penalty of ?75,00,000/- imposed on Shri Rajendra J. Gandhi was justified. The Judicial Member opined that the penalty should be set aside, while the Technical Member believed it should be upheld. The tribunal noted that the evidence against Shri Rajendra J. Gandhi was primarily based on the same pen drives and statements, which were found insufficient to establish clandestine removal. Given the lack of corroborative evidence and the retraction of statements, the tribunal set aside the penalty imposed on Shri Rajendra J. Gandhi.

Conclusion:
The tribunal, agreeing with the Judicial Member, concluded that the evidence presented by the Department was insufficient to prove unaccounted manufacture and clandestine removal of goods by SKPL. Similarly, the CENVAT credit availed was found to be valid, and the penalty on Shri Rajendra J. Gandhi was unjustified. Consequently, the impugned order confirming the demand of duty and imposing penalties was set aside, and both appeals were allowed with consequential reliefs to the appellants.

Final Order:
In view of the majority order, the impugned order confirming the demand of duty against M/S. Stovekraft Pvt. Ltd. and imposing penalty upon them and Shri Rajendra J. Gandhi was set aside. Both appeals were allowed with consequential reliefs to the appellants, if any. (Pronounced on 14-02-2018)