2019 (3) TMI 109 - AT - Central Excise

Clandestine manufacture and removal - sponge iron, steel ingots, runners, dolochar & char - short payment of duty of excise by undervaluing the excisable goods - cash found in he premises, whether unaccounted or not? - the case of the Revenue is mainly on the basis of procurement of unaccounted raw materials and its use in the manufacture of unaccounted finished goods, alleged to have been cleared clandestinely - Held that - In the search proceedings no unaccounted cash was found - also, iron ore is a controlled commodity and no iron ore can be dispatched or received by the appellant assessee, without permit issued by the competent authority of the mines department of the States Government. Normally iron ore is dispatched in wagons from the mines, which is accompanies by Fit Pass or permit issued by the competent authority. No supplier of alleged quantity of iron ore have been identified. Neither there is evidence of any transportation for receipt of unaccounted iron ore. Similarly there is no evidence of receipt of other raw materials like dolomite and coal - the allegations are mainly based on the unsubstantiated data retrieved from laptop/ pen drive which is not reliable, as the same does not have evidentiary value as provided under Section 36B of the Act, as the condition precedent for placing reliance in respect of data obtained from computer/pen drive, etc have not been established, like whether the paper print out containing data was produced by the computer during the period over which the computer was regularly being used during the relevant period by the person having lawful control over use of the said computer. Further, the document seized from the guesthouse cum residential premises of Shri Nitin Agarwal also lack evidentiary value - also, it is evident from the records that stock verification have been done by way of eye estimation on the date of search, as no calculation sheet is admittedly available on record. Further, there is no corroborative evidence of clandestine activity by way of unexplained consumption of electricity, excess utilisation of labour, evidence of clandestine transportation nor there is evidence of any clandestine cash flow found. The allegations in the show cause notice are presumptive and are not based on the actual state of affairs and /or corroborative evidence - the impugned order is not maintainable - appeal allowed - decided in favor of appellant.

Issues Involved:
1. Alleged clandestine manufacture and removal of excisable goods.
2. Reliability of evidence retrieved from electronic devices.
3. Validity of stock verification methods.
4. Allegation of unaccounted procurement of raw materials.
5. Admissibility and voluntariness of statements made by company officials.
6. Applicability of extended period of limitation.
7. Imposition of penalties on the company and its director.

Issue-wise Detailed Analysis:

1. Alleged Clandestine Manufacture and Removal of Excisable Goods:
The Revenue alleged that the appellant company (SSPL) was engaged in the clandestine removal of finished goods without payment of excise duty, based on entries in private diaries, notebooks, and rough pads. However, the Tribunal found that no unaccounted cash or unaccounted raw materials were found during the search. The evidence was deemed unsubstantiated as it was primarily based on data retrieved from a pen drive, which lacked corroborative evidence.

2. Reliability of Evidence Retrieved from Electronic Devices:
The Tribunal noted that the entire case of the Department was based on data retrieved from a single pen drive recovered from the residence of the director. The data was not considered admissible under Section 36B of the CEA, 1944, as it was not produced by the computer during its regular use. The Tribunal cited the case of Premium Packaging Pvt. Ltd. Vs. CCE, 2005 (184) ELT 165 (CESTAT) to support this view.

3. Validity of Stock Verification Methods:
The Tribunal found that the stock verification was done by eye estimation, and no calculation sheet was available. The alleged shortages in stock were not supported by any corroborative evidence. The Tribunal referenced multiple cases, including Shree Nakoda Ispat Ltd. Vs. CCE, Raipur 2017 (348) ELT 313 (Trib-Delhi), to support the contention that stock verification by eye estimation is not reliable.

4. Allegation of Unaccounted Procurement of Raw Materials:
The Tribunal noted that iron ore, a controlled commodity, could not be procured unaccounted due to strict regulations. There was no evidence of receipt of unaccounted iron ore, coal, or dolomite. The Tribunal found that the allegations were based on unsubstantiated data and lacked evidence of transportation or suppliers of unaccounted raw materials.

5. Admissibility and Voluntariness of Statements Made by Company Officials:
The Tribunal found that the statements of the director and the excise clerk were not voluntary and had been retracted. The statements were not considered primary evidence, and the Tribunal cited the case of Hindustan Machines Vs. CCE 2013 (294) ELT 43 (CESTAT) to support this view.

6. Applicability of Extended Period of Limitation:
The Tribunal did not make a definitive ruling on the applicability of the extended period of limitation, as the appeal was allowed on merits. However, it was noted that the demand was based on conjectures and surmises, not on cogent evidence.

7. Imposition of Penalties on the Company and Its Director:
The Tribunal found that since the demand of duty itself was not sustainable, penalties were also not imposable. The Tribunal cited several cases, including Mount Methur Pharmaceuticals Ltd. Vs. CCE 2006 (206) ELT 508 (Trib.), to support this view.

Conclusion:
The Tribunal allowed the appeals, set aside the impugned order, and left the question of limitation open. The judgment emphasized the lack of corroborative evidence, the unreliability of data retrieved from electronic devices, and the improper stock verification methods.

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