2016 (2) TMI 534 - AT - Central Excise

Tribunal overturns Cenvat Credit demand due to lack of evidence and denial of cross-examination

M/s Sunland Metal Recycling Industries, Shri Surendra P. Kachhara Versus Commissioners of Central Excise, Customs and Service Tax-Vapi

M/s Sunland Metal Recycling Industries, Shri Surendra P. Kachhara Versus Commissioners of Central Excise, Customs and Service Tax-Vapi - TMI Issues Involved:1. Wrongful availing of Cenvat Credit.2. Alleged diversion of imported inputs to the local market.3. Reliance on third-party statements and documents.4. Denial of cross-examination.5. Comparison with a similar case involving a sister concern.Detailed Analysis:1. Wrongful Availing of Cenvat Credit:The core issue revolves around the allegation that the assessee wrongly availed Cenvat Credit on imported inputs during the period from September 2004 to March 2006. The Adjudicating Authority confirmed the demand of Cenvat Credit of Rs. 61,32,005/- along with interest and imposed penalties on the assessee and its partner. The assessee contended that they received duty-paid inputs in their factory, used them in manufacturing final products, and recorded these transactions in statutory records. They argued that some documents were seized by the Directorate of Revenue Intelligence (DRI), which hindered their ability to produce all necessary documents during the investigation.2. Alleged Diversion of Imported Inputs to the Local Market:The Revenue alleged that the assessee diverted imported inputs to the local market, sold them in cash, and substituted the inputs shown in the factory with non-duty paid local scrap. The show cause notice stated that the imported inputs were sold to different buyers in cash without maintaining any records. The assessee denied these allegations, asserting that the stocks of finished goods and inputs tallied with their records, and there was no evidence of selling duty-paid inputs or purchasing local scrap.3. Reliance on Third-Party Statements and Documents:The case was primarily built on the documents and statements obtained from M/s Pankaj Shipping & Transport Company (PSTC), the transporter. The Adjudicating Authority relied on Daily Loading Reports (DLRs) and Monthly Loading Reports (MLRs) recovered from PSTC. However, the statements from PSTC employees were contradictory and lacked corroborative evidence. The Tribunal noted that duty cannot be levied based solely on third-party statements and documents unless corroborated with the assessee's records.4. Denial of Cross-Examination:The assessee was not allowed to cross-examine the third-party witnesses whose statements were used against them. The Tribunal emphasized that the right to cross-examination is crucial, especially when the statements are from third parties and form the basis of the allegations. The Tribunal cited various precedents, including the Delhi High Court's judgment in Basudev Garg Vs. CC, which underscored the necessity of cross-examination in quasi-judicial proceedings.5. Comparison with a Similar Case Involving a Sister Concern:The Tribunal referenced a similar case involving the assessee's sister concern, M/s Sunland Alloys, where the allegations were based on the same type of evidence from PSTC. In that case, the Tribunal allowed the appeals, finding that the evidence was not sufficient to prove the allegations. The Tribunal reiterated that without direct evidence of diversion or non-receipt of inputs, the allegations could not be sustained.Conclusion:The Tribunal concluded that the demand of Cenvat Credit along with interest and penalties on the assessee and its partner could not be sustained due to the lack of corroborative evidence and the denial of cross-examination. The appeals filed by the appellants were allowed with consequential relief. The judgment highlighted the importance of direct evidence and the right to cross-examination in adjudicating such cases.