2021 (12) TMI 1012 - AT - Central Excise

Clandestine Removal - three fake invoices - absence of any evidences regarding transport of goods - corroborative evidences produced or not - HELD THAT - The findings in the order under challenge are held to be nothing but presumptive. There is observed absolute ignorance of the statement in cross-examination of alleged kin-pin Shri Amit Gupta and the transporter Shri Sanjeev Maggu. There is no other relevant evidence to prove the Departments case. Rather there is statement of Shri D.P. Sharma, Senior Manager of M/s. Aggarwal Metals Pvt. Ltd. as was reorded on 24.05.2017 which is relevant w.r.t. the impugned three invoices of M/s. V.K. Enterprises. He specifically deposed that M/s. Agrawal Metals used to purchase copper scrap from V.K. Enterprises against the payments either by RTGS or by Cheques. He has outrighly denied the invoices to be mere cenvatable without delivery of goods. He also denied receiving any cash from M/s.V.K. Enterprises of the amount sent by them through RTGS/Cheque. This deposition clearly falsifies the presumptive alleged modus-operandis. Law has been settled that mere statements are not sufficient to prove clandestine removal - Admittedly, there is no other evidence on record so as to relate to the clandestine activities of the assessee. Appeal allowed - decided in favor of appellant.

Issues Involved:
1. Validity of Cenvat Credit availed by the appellant.
2. Legitimacy of the penalties imposed on the appellants.
3. Credibility of the statements made by Shri Amit Gupta and other witnesses.
4. Adequacy of evidence to support the allegations of issuing fake invoices without actual delivery of goods.

Issue-wise Analysis:

1. Validity of Cenvat Credit availed by the appellant:
The main appellant, M/s. Agrawal Metals, availed Cenvat Credit based on invoices issued by registered dealers, specifically V.K. Enterprises. The demand was based on three invoices issued by V.K. Enterprises, which the authorities claimed were fake. The appellant argued that the goods were duly transported, payments were made through cheques, and proper records were maintained. The Tribunal observed that there was no evidence other than the statement of Amit Gupta to corroborate the claim that the invoices were fake. The Tribunal noted that the appellant's records had been regularly audited without discrepancy, and no alternative source of raw materials was identified by the Revenue.

2. Legitimacy of the penalties imposed on the appellants:
Penalties were imposed on the appellants based on the assumption that they availed Cenvat Credit on fake invoices. The Tribunal found that the penalties were imposed merely on the basis of assumptions and the uncorroborated statement of Amit Gupta. The Tribunal emphasized that mere statements are insufficient to prove clandestine removal or the issuance of fake invoices. The Tribunal cited previous judgments where similar cases were adjudicated, and penalties were set aside due to lack of evidence.

3. Credibility of the statements made by Shri Amit Gupta and other witnesses:
The Tribunal scrutinized the statements made by Amit Gupta and other witnesses, including Shri Sanjeev Maggu. Amit Gupta retracted his statement during cross-examination, claiming it was made under coercion. Similarly, Sanjeev Maggu denied his earlier statement, asserting it was dictated by the officers. The Tribunal found these retractions credible and noted that the Commissioner (Appeals) had failed to consider these cross-examinations. The Tribunal concluded that the statements used to support the Revenue's case were unreliable.

4. Adequacy of evidence to support the allegations of issuing fake invoices without actual delivery of goods:
The Tribunal observed that the Revenue's case was primarily based on the statements of Amit Gupta and other witnesses, with no substantial evidence to prove the allegations. The Tribunal highlighted the absence of any investigation into the purchase of raw materials, excess production, transportation details, realization of sale proceeds, or excess power consumption. The Tribunal referred to the judgment in Continental Cement Co. Vs. Union of India, which emphasized the need for tangible evidence to prove clandestine activities. The Tribunal found that the Revenue had failed to provide sufficient evidence to support its allegations.

Conclusion:
The Tribunal concluded that the order under challenge was not sustainable due to the lack of corroborative evidence and the reliance on unreliable statements. The Tribunal set aside the order, allowing all the appeals and pronouncing the judgment in favor of the appellants.

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