2018 (8) TMI 1212 - AT - Central Excise

Clandestine manufacture and removal - MS Ingots - Revenue entertained a view that the respondents have suppressed their production for the Financial Year 2009-10 and 2010-11 - demand based on input output ratio - Held that - Revenue in their memo of appeal have again reiterated their stand that input output ratio, which were primarily based upon the statement of the assessee s employee should be adopted for arriving at the quantum of manufacture of final product. The charges of clandestine removal are required to be proved not on the basis of input output ratio, which fluctuates depending upon number of factors like grade and purity of sponge iron, grade and purity of scrap, the metallurgical process adopted for production, the power supply conditions etc. For upholding the charge of clandestine removal, the onus to prove the same lies heavily on the Revenue and is required to be discharged by production of positive, tangible and cogent evidences - The same are admittedly absent in the present case and the entire case of the Revenue is on the basis of input output ratio, which cannot be appreciated. Appeal dismissed - decided against Revenue.

Issues Involved:
1. Allegation of suppressed production and clandestine removal of goods.
2. Validity of input-output ratio as evidence.
3. Requirement of corroborative evidence for proving clandestine removal.
4. Applicability of extended period of limitation for demand.
5. Justifiability of the demand and penalties imposed.

Issue-wise Detailed Analysis:

1. Allegation of Suppressed Production and Clandestine Removal of Goods:
The Revenue alleged that the respondents suppressed their production for the financial years 2009-10 and 2010-11 based on the input-output ratio. The Commissioner of Central Excise, Meerut, dropped the demand of ?78,98,568/- proposed in the show cause notice dated 05/05/2014, stating that input-output ratio alone cannot be the basis for alleging suppression of production without other evidence of actual manufacture and clearance of goods in a clandestine manner.

2. Validity of Input-Output Ratio as Evidence:
The Commissioner held that the input-output ratio is not a reliable metric for alleging suppression of production due to various factors affecting consumption. These factors include:
- Grade and purity of Sponge Iron and Scrap.
- Metallurgical process, working conditions, and power supply.
- Economic conditions and availability of raw materials on credit.
The Commissioner emphasized that small furnaces cannot maintain standard consumption patterns, and the input-output ratio can vary significantly.

3. Requirement of Corroborative Evidence for Proving Clandestine Removal:
The Commissioner noted the absence of corroborative evidence to support the allegations of clandestine removal, such as:
- Clandestine procurement of raw materials.
- Evidence of clandestine manufacture and removal of goods.
- Details of the destination, mode of transport, and payments for clandestinely removed goods.
The onus to prove the allegations lies with the department, which failed to provide any cogent and corroborative evidence.

4. Applicability of Extended Period of Limitation for Demand:
The Commissioner observed that the department was aware of the consumption patterns and production data through statutory audits and tax audit reports. Since the department did not object to these norms earlier, invoking the extended period of limitation was deemed unjustified, making the demand time-barred.

5. Justifiability of the Demand and Penalties Imposed:
The Commissioner concluded that the demand and allegations were based on presumptions and not supported by evidence. The input-output ratio used for the allegations was found to be incorrect based on actual audited data. The Commissioner referenced several case laws supporting the decision to drop the demand and penalties, including:
- Chandan Tobacco Co. vs. CCE, Vapi.
- Ravi Foods P. Ltd. vs. CCE, Hyderabad.
- Amar Ceramics Ltd. vs. CCE, Rajkot.
- CCE, Allahabad vs. Mohd. Anis & Sons Biri Workers.

Conclusion:
The appellate tribunal upheld the Commissioner’s decision, rejecting the Revenue's appeal. The tribunal emphasized that the charges of clandestine removal must be proven with positive, tangible, and cogent evidence, which was absent in this case. The reliance on the input-output ratio without corroborative evidence was not sufficient to sustain the allegations. The appeal was pronounced and dismissed in court.

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