2018 (8) TMI 470 - AT - Central Excise

Clandestine removal - cross-examination of various persons not provided - principles of natural justice - Held that - It is seen that most of the entries are made in such a way that it is difficult to arrive at a conclusion about sales and purchase of raw materials and finished goods. From the records and registers made available, the entries are made in a cryptic manner that too after so many alterations. This leads to conclude that Appellant has indulged in the clandestine removal. The statements recorded by the various persons wherein in some statements, it is stated that there was cash sales also but this in itself would not be sufficient to prove the clandestine removal without the further corroborative evidence. Regarding acceptance of computer printouts as the evidence only after passing the test of examination and cross examination of the person responsible for feeding such data. Before acceptance of computer printouts the rigours of Section 36B of CEA, 1944 has to be fulfilled but the same has not been followed in their case - The Revenue has not conducted investigation regarding the supply made to the person whose name is found to be entered in the Register if it is for clearance of finished goods clandestinely. Appeal allowed - decided in favor of appellant.

Issues Involved:
1. Unaccounted raw material.
2. Clandestine removal of finished goods.
3. Statements recorded under Section 14 of the Central Excise Act.
4. Contravention of Central Excise Rules.
5. Admissibility and integrity of computer printouts as evidence.
6. Non-provision of cross-examination violating principles of natural justice.
7. Calculation of duty demand based on highest price.
8. Eligibility for CENVAT Credit.

Issue-wise Detailed Analysis:

1. Unaccounted Raw Material:
The appellant was accused of not recording the receipt of various raw materials like Metalizer Films and Printed Films in their books of account. Statements from suppliers indicated that raw materials were supplied based on handwritten challans with payments made in cash. The appellant argued that the statements were taken behind their back and relied upon legal precedents that such statements are inadmissible without an opportunity for rebuttal.

2. Clandestine Removal of Finished Goods:
The department alleged clandestine removal based on private records and computer printouts seized from the appellant’s premises. The appellant contended that the documents were not written by their employees and lacked corroborative evidence. They argued that the alleged quantity of clandestinely removed goods exceeded their production capacity, making the allegations implausible.

3. Statements Recorded Under Section 14 of the Central Excise Act:
The appellant argued that the statements from suppliers and customers were taken behind their back and without cross-examination, violating principles of natural justice. They cited several legal precedents supporting their claim that such statements should not be relied upon without giving them an opportunity for cross-examination.

4. Contravention of Central Excise Rules:
The appellant was accused of violating Central Excise Rules by not accounting for raw materials and finished goods properly. They argued that the department failed to provide concrete and tangible evidence of such violations, relying instead on assumptions and unverified statements.

5. Admissibility and Integrity of Computer Printouts as Evidence:
The appellant challenged the admissibility of computer printouts as evidence, arguing that the CPU was seized without proper sealing and the printouts were taken three months later, raising doubts about data integrity. They cited legal requirements under Section 36B of the Central Excise Act for accepting computer printouts as evidence, which were not followed in this case.

6. Non-provision of Cross-examination Violating Principles of Natural Justice:
The appellant argued that the department’s failure to provide cross-examination of witnesses whose statements were used against them violated principles of natural justice. They cited several legal precedents where such failures rendered the proceedings void.

7. Calculation of Duty Demand Based on Highest Price:
The appellant contended that the department wrongly calculated the duty demand based on the highest price of the products, ignoring the transaction value. They argued that duty should be calculated based on the actual transaction value as per Section 4(1)(a) of the Central Excise Act.

8. Eligibility for CENVAT Credit:
The appellant claimed that even if they were found to have clandestinely removed goods, they should be eligible for CENVAT Credit for the raw materials used. They cited several legal precedents supporting their claim for CENVAT Credit.

Judgment:
The Tribunal found that the department failed to provide sufficient and tangible evidence to prove clandestine removal. The records and statements were cryptic and lacked corroboration. The failure to provide cross-examination of witnesses and the improper handling of computer printouts further weakened the department’s case. The Tribunal set aside the impugned order, allowing the appeals and concluding that the appellant was not liable for the duty demanded.

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