2022 (8) TMI 227 - AT - Central Excise

Clandestine removal - MS Ingots - corroborative evidences or not - whole case of Revenue is based on third party record as well as statement of the Director of M/s PIL - HELD THAT - There is no corroboration of the allegation of Revenue with the record of this appellant. Nor there is any admission of the alleged clandestine transaction on the part of the appellant. Further, the third party record are not corroborated and unsubstantiated. Further, such third party record and the statement of the Director of M/s PIL cannot be used against this appellant both for non joinder of the parties and also failure on the part of Revenue to examine Sh. Pankaj Agarwal as its witness in the adjudication proceedings. Appeal allowed - decided in favor of appellant.

Summary

Issues:

1. Imposition of duty and penalty on the appellant.

Analysis:

The case involved the imposition of duty and penalty on the appellant based on discrepancies found during a search operation at the premises of another company, M/s Pankaj Ispat Limited (M/s PIL). The records seized during the search revealed that M/s PIL had purchased a significant quantity of MS ingots from the appellant without paying excise duty. The Director of M/s PIL admitted to this, leading to a follow-up inquiry against the appellant. However, the Director of the appellant denied any clandestine removal of the ingots without payment of duty. A show cause notice was issued to the appellant for the demand of central excise duty, interest, and penalty, which was adjudicated in favor of the revenue, imposing a substantial penalty on the appellant and its Director.

Upon appeal to the Commissioner (Appeals), the appeal was dismissed, citing that the transaction in dispute was recorded in the seized records of M/s PIL, with the Director of M/s PIL acknowledging both duty-paid and non-duty-paid transactions with the appellant. The Commissioner upheld the order-in-original, leading the appellant to approach the Tribunal.

During the Tribunal proceedings, the appellant argued that the case against them was solely based on third-party records and statements, with no evidence of wrongdoing on their part. They contended that the statements of M/s PIL's Director should not hold evidentiary value as he was not examined by the assessing officer. The appellant also raised concerns about non-joinder of parties, asserting that the proceedings were flawed. The appellant relied on previous tribunal rulings where appeals were allowed in similar circumstances.

The Tribunal, after considering the arguments, found that there was no corroboration of the revenue's allegations against the appellant. The lack of admission of clandestine transactions and the unsubstantiated third-party records led the Tribunal to rule in favor of the appellant. The Tribunal highlighted the failure of the revenue to examine M/s PIL's Director as a witness and the non-joinder of essential parties in the proceedings. Consequently, the Tribunal allowed the appeal, setting aside the impugned order and granting the appellant consequential relief.