2023 (10) TMI 223 - AT - Central Excise

Clandestine Removal - Availment of credit of countervailing duty paid by the respondents - inputs were actually not received by the respondents in their factories - the receipt and consumption of the same are wrongly shown in the manufacture of the final product, which was cleared on payment of duty - said imported inputs stand diverted by the respondents in the open market around Delhi - reliance placed in the third party evidences - Corroborative evidences or not - HELD THAT - The Revenue could not bring any corroborative evidence that the disputed imported goods were diverted to any other place. It is not the Revenue s case that respondents production of final product is not proportionate to the receipt of the imported inputs. The Revenue has also not shown that if the respondents have not received the imported inputs, where the same have gone. In the absence of any evidence to show the disposal of such imported inputs to any other person, the denial of credit merely on the RTO check post reports and transporter records is not justified. In the present matter incorrect vehicles numbers were recorded on the transportation documents and on that basis revenue alleged that said vehicles are not transport vehicles / incapable of carrying the consignments. In this regard, merely because wrong vehicle number mentioned on the duty paying documents that itself does not prove that the goods have not been transported. It has been observed in various cases that it is common that the wrong vehicles number is mentioned in the documents due to clerical error or due to wrong presentation of vehicle number by the truck drivers. In the case of M/s. Steel Tubes of India Limited v. CCE, Indore 2008 (4) TMI 713 - CESTAT NEW DELHI , it was held that merely because vehicle numbers mentioned in some of the invoices are not of transport vehicles, the same is not sufficient to deny the credit when there is evidence of receipt and utilization of inputs and no evidence of diversion is available. It is found that though the reports from the transport or commercial department check posts states that the goods did not cross the border posts, but for this reason, it cannot be concluded that the goods did not pass through the transit state - In the facts of the present case, Check Posts report cannot be sole basis for denial of Cenvat credit. The entire transactions were duly recorded in statutory records of the respondents - there are no reason or tangible evidence to say that inputs in question were not received by the respondents. In the whole matter department has relied upon third party records and statements. The Cenvat demand alleging fraudulent availment of Cenvat credit on strength of Bills of entry without receiving imported inputs cannot be sustainable solely based on statements of third party and their records. So long Shri Keshav Singh Tomar, Branch Manager of the transport TASH in his statement admitted that they had transported the goods from UP Border office for Respondents at Daman; the goods were received from ICD Tughlakabad under sealed containers through M/s D.V. Bhaskhi and M/s J.M. Baxi who were Customs House Agents - in the present case the reliance of third party documents /statements while conforming demand against present respondents are also observed to be unjustified and unreasonable. It is settled principle of law that in case, if the Revenue wants to rely upon the entries of the third party, the burden lies upon the Revenue Authority to prove the genuineness and authenticity of the said entry and to connect the said entry with the respondents, in case, if the respondents deny to have any connection with such entry. Therefore the charge of non receipt of non receipt of input is not maintainable only on the basis of third party records and data. It is necessary to check the evidentiary value of the third party evidence. The Cenvat demand is solely based upon the statement of third parties and the assumed interpretation of the same is not sustainable. The charge against the respondents are required to be arrived at on the basis of positive and tangible evidences including the evidences relating to procurement of raw-materials, conversion of the same to final products, clearances of the same and identification of the buyers and receipt of unaccounted cash etc. - The Revenue has miserably failed to produce corroborative evidence on records so as to substantiate the charges of non- receipts of imported goods and substitution of the same with kabadi scrap and availment of the wrong Cenvat Credit. Since the investigation has failed to adduce any corroborative evidences to establish clandestine removal of the goods and failed to discharge the onus to prove the allegations, the allegations are not sustainable - the allegation of clandestine removal of finished goods is not established - Reliance can be placed in COMMR. OF C. EX., COIMBATORE VERSUS SANGAMITRA COTTON MILLS (P) LTD. 2003 (11) TMI 146 - CESTAT, CHENNAI and VAKHARIA TRADERS VERSUS COMMISSIONER OF CENTRAL EXCISE, SURAT-I 2004 (4) TMI 413 - CESTAT, MUMBAI . The learned Commissioner as regard the disputed matter has very consciously considered the facts of the case, allegation of the Revenue and evidences on records and came to the conclusion that the allegation of clandestine removal of the goods and non receipt of inputs, on which credit was availed, are not established by the Revenue. Hence he rightly dropped the proceedings of the show cause notice. There is no infirmity in the order of the learned Commissioner and the same does not require any interference. Therefore the impugned order is upheld. Appeal of Revenue dismissed.

Summary

Issues Involved:
1. Confiscation of Goods and Imposition of Penalty
2. Wrong Availment of Cenvat Credit
3. Clandestine Clearance of Excisable Goods

Summary of the Judgment:

Confiscation of Goods and Imposition of Penalty:
The Revenue appealed against the denovo order dated 31.01.2019, which dropped the proceedings of the show cause notice proposing confiscation of goods and imposition of penalty under Rule 25 of the Central Excise Rules 2002. The Tribunal found that the respondents recorded the receipt of imported goods in their cenvat account and raw material receipts accounts. The payment against the imports was made through cheques, and the transportation payment was also made via banking channels. The Revenue failed to provide corroborative evidence showing the diversion of the imported goods to any other place. The Tribunal upheld the Commissioner's finding that the goods were indeed received and used in the manufacture of final products.

Wrong Availment of Cenvat Credit:
The Revenue alleged that M/s MG and M/s MI wrongfully availed Cenvat Credit on duty-paid raw materials based on documents without actual receipt or use in manufacturing excisable goods. The Tribunal noted that the respondents had recorded the receipt of imported goods in their statutory records and made payments through banking channels. The Tribunal found that the Revenue did not provide any evidence of the disposal of the imported inputs to any other person. The Tribunal referenced multiple judgments, concluding that credit cannot be denied solely on the basis of incorrect vehicle numbers mentioned in transportation documents, and upheld the Commissioner's decision to drop the proceedings.

Clandestine Clearance of Excisable Goods:
The Revenue alleged that the respondents engaged in the clandestine clearance of excisable goods without payment of duty. The Tribunal found that the Revenue's allegations were based on assumptions and lacked corroborative evidence. The Tribunal emphasized that the burden of proof lies on the Revenue, which failed to establish the clandestine removal of goods with affirmative and cogent evidence. The Tribunal supported the Commissioner's findings that the respondents had received the imported goods and used them in the manufacture of final products, and that the allegations of clandestine removal were not substantiated.

Conclusion:
The Tribunal upheld the order of the learned Commissioner, finding no infirmity in the decision to drop the proceedings initiated under the show cause notices. The appeals filed by the Revenue were dismissed, and the cross-objections filed by the respondents were disposed of accordingly.