2013 (7) TMI 535 - AT - Central Excise

Tribunal modifies demand due to lack of evidence, upholds part based on invoices. Penalties imposed.

M/s. Sakeen Alloys Pvt. Limited Versus Commissioner of Central Excise Ahmedabad

M/s. Sakeen Alloys Pvt. Limited Versus Commissioner of Central Excise Ahmedabad - 2013 (296) E.L.T. 392 (Tri. - Ahmd.) Issues Involved:1. Cladestine removal of goods based on records/pen-drive recovered from M/s. Sunrise Enterprises.2. Denial of cross-examination of key witnesses.3. Validity of evidence from third parties.4. Demand of duty based on parallel invoices recovered from the transporter.Issue-wise Detailed Analysis:1. Cladestine Removal of Goods Based on Records/Pen-drive Recovered from M/s. Sunrise Enterprises:The primary issue revolves around the demand of Rs. 1,85,10,861/- based on the records and pen-drive recovered from M/s. Sunrise Enterprises, a dealer of M/s. Sakeen Alloys Pvt. Limited. The appellants argued that the goods found in the stockyard of M/s. Sunrise Enterprises were marked 'VARSANA' and not manufactured by the appellant. They contended that the allegation of clandestine removal cannot be substantiated solely on the records or pen-drive recovered from a third-party's premises. The Tribunal observed that the stock in the stockyard tallied with the invoices, indicating proper documentation. The Tribunal emphasized the necessity of cross-examination to ascertain the truth behind the records/pen-drive.2. Denial of Cross-examination of Key Witnesses:The appellants' requests for cross-examination of key witnesses, including the person in charge of M/s. Sunrise Enterprises and the transporter, were denied by the adjudicating authority. The Tribunal noted that cross-examination is crucial, especially when statements are retracted, to uphold the principles of natural justice. The Tribunal referred to several judgments, including the Hon'ble Supreme Court's ruling in Shalimar Rubber Industries, which held that without cross-examination, statements cannot be the sole basis for concluding clandestine removal.3. Validity of Evidence from Third Parties:The Tribunal highlighted that evidence from third parties, such as records maintained by M/s. Sunrise Enterprises, cannot be solely relied upon without corroborative evidence. The Tribunal cited various cases, including the Hon'ble High Court's ruling in CCE vs. Omkar Textiles, which emphasized that the onus is on the Revenue to provide concrete evidence beyond confessional statements. The Tribunal found that no investigation was conducted at the suppliers' end, and no buyers of the finished goods were examined to confirm the clandestine removal.4. Demand of Duty Based on Parallel Invoices Recovered from the Transporter:The demand of Rs. 8,25,277/- was based on parallel invoices recovered from the premises of M/s. Khodiyar Transport Services. The Tribunal upheld this demand, noting that positive evidence in the form of parallel invoices was available and confirmed by the transporter and an independent witness. Consequently, the Tribunal imposed penalties on M/s. Sakeen Alloys Pvt. Limited and individuals involved, including the Managing Director and the proprietors of M/s. Sunrise Enterprises and M/s. Khodiyar Transport Service.Conclusion:The Tribunal set aside the demand of Rs. 1,85,10,861/- due to lack of corroborative evidence and denial of cross-examination, but upheld the demand of Rs. 8,25,277/- based on parallel invoices. Penalties were imposed accordingly. The appeals were allowed by modifying the adjudicating authority's order to this extent.