2020 (7) TMI 315 - AT - Central Excise

Clandestine Removal - procuring of unaccounted raw-materials for illicit manufacture of finished goods - admission in the statement of the Director of the appellant about calndestine removal - Drivers admitted transporting goods without invoices - No documents relating to job work were submitted at the time of investigation - manner of stock taking was never objected - extended period of limitation - suppression of facts or not - HELD THAT - The stock verification on the basis of eye estimation and the statements recorded at the time of investigation are the only source of reliance for the adjudicating authority to confirm the demand. Though the documents as recovered at the time of search are also been held to be the evidence proving the clandestine removal by the appellant, but I observe that documents explaining the noticed shortage were submitted by the appellant at the very initial stage of replying the show cause notice. There is no denial about receipt of the said documents. However, same are alleged to be an afterthought. The documents as relied upon by adjudicating authority below, while confirming the demand are delivery challan, estimated invoice, outgoing sheet etc. but these documents admittedly and apparently have not been co-related with the documents submitted by the appellant - perusal of documents makes it clear that the Department has ignored the supportive documents which are sufficient enough to falsify the opinion of the Revenue formed at the time of the investigation. The another ground for confirming the demand is the shortage noticed after physical verification of the goods, admittedly the goods were verified on the basis of eye estimation - HELD THAT - Tribunal Delhi in the case of COMMISSIONER OF CENTRAL EXCISE LUCKNOW VERSUS M/S. SIGMA CASTINGS LTD. 2012 (5) TMI 325 - CESTAT, NEW DELHI has held that where the shortages have been made purely on eye estimation basis without any actual weighment of the goods the demand alleging clandestine removal cannot be upheld. The removal of inputs was also not taken into consideration while alleging the shortage of stock. The eye estimation of stock without any other corroborative evidence of removal of inputs cannot be the evidence for the quantity of inputs to be short or to have been clandestinely removed - Allahabad Tribunal in the case of RADHA MADHAV CORPORATION LTD. VERSUS COMMISSIONER OF C. EX., DAMAN 2013 (6) TMI 395 - CESTAT, AHMEDABAD wherein it was specifically held that charge of clandestine removal is to be established on the basis of preponderance of probabilities, it cannot be merely on the basis of assumptions and presumptions. Clandestine removal has to be established beyond doubt by adducing strong, sufficient and positive evidence and the burden of proving the same is on the Department. Also, there is no evidence of procurement of raw-material and consumption thereof. No single payment detail of clandestine sale has been discussed. Nor there is any evidence of any excessive power consumption which is otherwise required for the alleged large scale production. Nor there is any record of recruitment of workers or staff required for alleged massive production with no payment of record of salary and wages to such workers. No document in the form of receipts of any cash or kind on account of clandestine clearance and sale of goods has been seized from the parties. No evidences of removal of excisable goods or procurement of raw-materials and its consumption are on record - there is no evidence in corroboration to the presumption of the department, demand cannot be sustained. Extended period of Limitation - Suppression of facts or not - HELD THAT - It is an admitted fact that monthly E.R. Returns have regularly been filed by the appellant. It becomes clear that all the relevant facts were in knowledge of the Department authorities since beginning. Except omission to file the declaration about job work from Sona Wires in terms of Notification No. 214/86-CE dated 25.03.1986 there is no other allegation which may amount as suppression. Law has been settled that every omission cannot be suppression - The Department is not entitled to invoke the extended period of limitation. The entire demand being beyond the normal period is not sustainable. The findings of the adjudicating authority being merely on the basis of their own presumption, on the basis of wrong interpretation of the statement of the witnesses as admission and for wrongly holding the late declaration as suppression are, therefore, not sustainable - demand do not sustain - appeal allowed - decided in favor of appellant.

Summary

Issues Involved:

1. Alleged clandestine removal of goods without payment of Central Excise duty.
2. Validity of stock verification methods.
3. Consideration of job work documents.
4. Onus of proof on the Revenue.
5. Invocation of the extended period of limitation.

Issue-wise Detailed Analysis:

1. Alleged Clandestine Removal of Goods:

The appellant was accused of engaging in the clandestine removal of goods without paying Central Excise duty, based on a show cause notice issued after a search and physical verification of stock. The Department alleged that the appellant procured unaccounted raw materials for illicit manufacturing and removal of finished goods. However, the appellant contended that there was no shortage of goods and that the documents recovered during the search could have been reconciled with their records. The appellant argued that the Department failed to consider their submissions and documents, which could have disproven the allegations.

2. Validity of Stock Verification Methods:

The stock verification conducted by the Department was based on eye estimation rather than scientific methods. The appellant argued that the alleged physical shortage was based on estimation and not actual recounting. The Tribunal observed that stock verification based on eye estimation is not reliable. Citing previous judgments, it was held that shortages detected purely on eye estimation without actual weighment cannot substantiate a demand for clandestine removal.

3. Consideration of Job Work Documents:

The appellant claimed that the shortage of goods was due to the goods being sent to Sona Wires for job work, and they provided challans and other documents to support this claim. The Department dismissed these documents as an afterthought. However, the Tribunal noted that documents of previous dates, even if submitted later, cannot be considered an afterthought unless proven otherwise with cogent evidence. The Tribunal found that the Department ignored supportive documents that could have disproven the allegations.

4. Onus of Proof on the Revenue:

The Tribunal emphasized that the onus was on the Revenue to prove the allegations of clandestine removal with cogent evidence. The Department relied on documents such as delivery challans and outgoing sheets but failed to correlate these with the appellant's documents. The Tribunal cited previous judgments to assert that allegations of clandestine removal must be supported by strong, sufficient, and positive evidence, including details of raw material procurement, excessive power consumption, and records of clandestine sale proceeds. The absence of such evidence meant the demand could not be sustained.

5. Invocation of the Extended Period of Limitation:

The Department invoked the extended period of limitation, alleging suppression of facts by the appellant. However, the Tribunal noted that the appellant had regularly filed monthly E.R. Returns, indicating that relevant facts were known to the Department. The Tribunal cited Supreme Court judgments to assert that mere failure to declare does not amount to willful suppression. There must be a positive act of willful misstatement or suppression. The Tribunal concluded that the Department was not entitled to invoke the extended period of limitation, rendering the entire demand beyond the normal period unsustainable.

Conclusion:

The Tribunal set aside the order under challenge, finding that the demand was based on presumptions, wrong interpretations of witness statements, and an unjustified invocation of the extended period of limitation. The appeal was allowed, and the demand confirmed by the adjudicating authority was deemed unjustified.