2007 (2) TMI 23 - AT - Central Excise

Appellate authority dismisses penalties in aluminum scrap diversion case due to lack of evidence

COMMISSIONER OF C. EX., PUNE-II Versus GIRDHAR METAL INDS. PVT. LTD.

The appellate authority upheld the Commissioner (Appeals) decision to set aside the penalties imposed on the respondents for alleged diversion of imported ... Demand and Penalty – Revenue alleged that appellant were imported the consignment on availing the credit but instead of using the good in own factory transferred to other unit – After considering all the fact rejected the revenue allegation Issues:1. Import of Aluminium scrap and diversion to another location.2. Availing Modvat credit without receiving the goods.3. Allegations based on a third party statement.4. Authenticity of a letter referring to the diversion of goods.Analysis:1. The appeal was filed against the Commissioner (Appeals) order regarding the diversion of imported Aluminium scrap by the respondents from their factory to another location. The Revenue alleged that Modvat credit was wrongly availed by the respondents at their Bhor unit, leading to proceedings and penalties imposed by the Dy. Commissioner. However, the Commissioner (Appeals) set aside the order, prompting the Revenue to appeal.2. The Revenue's case heavily relied on the statement of Shri Parekh, the CHA of the assessee, who disclosed the diversion of the consignment and the wrongful availing of Modvat credit without receiving the goods. The Respondents argued that the CHA misused blank signed letters in settling personal scores, highlighting strained relations. With no substantial corroborative evidence besides the CHA's statement, the allegations lacked legal sustenance, as per the Commissioner (Appeals).3. Shri Parekh admitted the availability of blank signed letters of clients for general use, emphasizing their custody and accessibility. The absence of concrete evidence like sale proceeds, statements from the Dadra Nagar Haveli unit, or proof of raw material utilization in the final product weakened the Revenue's case. The Commissioner (Appeals) rightly emphasized the need for corroborative evidence beyond a third party statement to uphold allegations legally.4. The Revenue cited a letter allegedly written by the respondents to the Dadra Nagar Haveli unit as supporting evidence. However, the authenticity of the letter was challenged, pointing out discrepancies in its formatting and signatures. The letter appeared to be typed on pre-signed paper, raising doubts about its credibility. Given the lack of independent corroborative evidence, the appellate authority's decision to reject the Revenue's appeal was deemed appropriate, emphasizing the importance of substantial proof in such cases.