2009 (11) TMI 485 - AT - Central Excise

Cenvat/Modvat - Diversion of cenvatted inputs - Acting upon intelligence report regarding alleged involvement of the respondents in evasion of excise duty by fraudulently availing the Modvat credit in relation to the raw materials allegedly diverted to the market investigation was carried out by the department which culminated in issuance of show cause notice to the respondents alleging that the respondents had illegally availed modvat credit to the tune of Rs. 4,08,71,796/-. Held that - mere tallying of numbers and dates of LRs and GRs in the statement of representative of manufacturer of inputs, dealers and transporters from manufacturer of inputs, itself will not be conclusive and satisfactory evidence about diversion of inputs. Absence of proper co-relation being established between inputs received and final product, which did not contain PFY element. Difficult to establish any cogent evidence in relation to charge. Revenues appeal dismissed.

Issues:
1. Challenge to the Commissioner's order restricting credit disallowance.
2. Allegations of evasion of excise duty through fraudulent Modvat credit.
3. Appeal against the order confirming only part of the amount claimed.
4. Dispute over the demand for interest and penalty.
5. Department's appeal against the Tribunal's order in the respondents' appeal.
6. Verification of materials for clandestine diversion of inputs and illegal Modvat credit.
7. Legal entitlement to Modvat credit and lack of evidence of diversion of materials.
8. Co-relation between allegations and actual transactions for diverted inputs.
9. Lack of proper investigation and evidence for clandestine disposal of inputs.
10. Consideration of statements as conclusive proof without proper co-relation.

Analysis:
1. The appellants contested the Commissioner's order restricting credit disallowance, challenging the decision to confirm only a portion of the claimed amount. The respondents, engaged in manufacturing yarn, were accused of evading excise duty by fraudulently availing Modvat credit. The Tribunal, in an earlier order, held that the Commissioner erred in restricting the credit and allowed the respondents to claim the entire amount.

2. The appeal focused on the remaining disputed amount, with the department arguing for confirmation of the full demand. The Commissioner's decision was based on the lack of evidence establishing a connection between the alleged diversion of inputs and the actual transactions. The appellants claimed the Commissioner failed to consider materials indicating illegal Modvat credit availment by the respondents.

3. The Tribunal considered the verification of records and statements from involved parties. While some evidence pointed to diversion of inputs, the records maintained by the respondents did not show any discrepancies or non-utilization of materials. The lack of proper investigation and evidence to establish clandestine disposal of inputs weakened the department's case.

4. The Tribunal emphasized the importance of establishing a clear co-relation between the diverted inputs and the final products. Despite matching numbers and dates in statements, without concrete evidence of non-utilization by the respondents, the demand beyond the confirmed amount could not be sustained. The statements alone were not sufficient proof without proper co-relation.

5. Ultimately, the Tribunal found no grounds for interference in the Commissioner's order and dismissed the appeal. The lack of substantial evidence linking the diverted inputs to the alleged evasion of excise duty led to the rejection of the department's appeal. The Tribunal highlighted the necessity of thorough investigation and cogent evidence to support such claims in excise duty cases.

← Previous Next →