2020 (1) TMI 802 - HC - Central Excise

Clandestine removal - corroborative evidences - whether the electronic evidence collected during the course of the investigation by the appellant is properly taken into consideration by the Tribunal for adjudication in the appeal or not? HELD THAT - In view of the findings of facts arrived at by the Tribunal, after considering the material placed before it, no question of law much less any substantial question of law arises for consideration out of the impugned order - appeal dismissed.

Issues Involved:
1. Whether the Tribunal erred in its findings on facts without evidence.
2. Whether the Tribunal allowed the appeal based on submissions without contrary evidence.
3. Whether the Tribunal erred in concluding that charges of clandestine removal based on pen drive data are unsustainable.
4. Whether the assessee can avail CENVAT credit on inputs when the documents are not genuine.
5. Whether the Tribunal was justified in holding that no case for penalty is made out.

Detailed Analysis:

1. Tribunal's Findings on Facts Without Evidence:
The Revenue questioned whether the Tribunal committed an error in giving findings on facts that were without evidence and contrary to the material evidences available on record. The Tribunal observed that the charges of clandestine removal based on pen drive data were not sustainable and that the statements of brokers were self-contradictory. It was noted that the statements of directors could not be relied upon without corroboration with material evidence.

2. Tribunal Allowing Appeal Based on Submissions:
The Tribunal was accused of allowing the appeal merely on the basis of submissions made by the assessee without any contrary evidence and without examining the material evidences on record. The Tribunal found that no corroborative evidence was provided by the Revenue to substantiate the allegations, such as the receipt of unaccounted raw materials, production of unaccounted finished goods, or the use of extra labor and electricity.

3. Charges of Clandestine Removal Based on Pen Drive Data:
The Tribunal concluded that the charges of clandestine removal on the basis of pen drive data were not sustainable. The Tribunal emphasized that the onus to prove clandestine clearances has to be discharged by sufficient, cogent, and unimpeachable evidence. The Tribunal cited several judgments to support its stance that in the absence of corroborative evidence, no demand can be made.

4. Availment of CENVAT Credit on Non-Genuine Documents:
The Tribunal found that the Revenue did not prove the allegation of availment of CENVAT credit on the basis of invoices without receipt of goods. It was noted that the Revenue had not conducted investigations at the suppliers' end or provided statements from suppliers and other corroborative evidence.

5. Justification for No Penalty:
The Tribunal held that no case for penalty was made out as the allegations were not substantiated with sufficient evidence. The Tribunal observed that the statements of directors were contradictory and not corroborated by material evidence, thus not leading to an inference that the goods stated in the "Bombay Sales" ledgers were of the appellant.

Conclusion:
The Tribunal's findings were based on the lack of corroborative evidence provided by the Revenue. The Tribunal emphasized the necessity of cogent and unimpeachable evidence to prove clandestine clearances and the availment of CENVAT credit on non-genuine documents. Consequently, the appeals were summarily rejected, and no substantial question of law arose for consideration. No order as to cost was made.

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