2018 (10) TMI 1530 - AT - Central Excise

CESTAT New Delhi: Broker's Central Excise duty appeal allowed, lack of evidence in duty evasion case

M/s. Sourabh Rolling Mills Pvt. Ltd. Versus C.C.E., Raipur

The Appellate Tribunal CESTAT New Delhi allowed the appeal filed by a broker/commission agent in the iron and steel industry, overturning the demand for ... Clandestine manufacture and removal - MS Ingots - excess consumption of electricity - Held that:- The initial demand of ₹ 14,39,38,470/- has already been dropped to the major extent of ₹ 13,62,85,928/- qua excess consumption of electricity, relying upon the decision of Hon’ble Apex Court in the case of RA Castings Pvt. Ltd. [2011 (1) TMI 1302 - SUPREME COURT OF INDIA] - similar issue is no more res-integra as stand already been decided in favour of assessee. Case of the Revenue based upon the records recovered from M/s Monu Steels M/s. Kailash Traders etc. - Held that:- Mr.S.K. Pansari during his cross-examiantion also didn’t deny this fact rather admitted that all the recovered documents were written by Mr. Bal Mukund. Department has failed to obtain any document, as direct evidence, to corroborate the said recovered record. The same also finds mention in the order under challenge - the Revenue has not made any other enquiries and has solely relied upon the entries made in the record of M/s Monu Steels. Similarly for the record from M/s. Kailash Traders as far as the raw material is concerned, Department couldn’t have any other corroborative piece of evidence. The law i.e. as to whether the third party records can be adopted as an evidence for arriving at the findings of clandestine removal, in the absence of any corroborative evidence, is well established. Appeal allowed - decided in favor of appellant. Issues: Alleged suppression of production and clandestine removal of MS ingots leading to duty evasion.In this case, the Appellate Tribunal CESTAT New Delhi considered an appeal filed by a broker/commission agent dealing with iron and steel products against an impugned Show Cause Notice (SCN) alleging suppression of production and clandestine removal of MS ingots. The Department claimed that the appellant had evaded duty by clandestinely removing a significant quantity of MS ingots. The original adjudicating authority confirmed a demand for Central Excise duty amounting to &8377; 76,52,542/- along with interest and penalty, while dropping a major part of the initial demand related to excess electricity consumption. The appellant challenged this decision through the present appeal.The main argument put forth by the appellant was that the demand was confirmed without sufficient corroborative evidence linking them to the alleged clandestine removal. The appellant contended that their name emerged from documents recovered from another entity, but there was no concrete evidence directly implicating them in the evasion. On the other hand, the Department defended the adjudicating authority's decision, stating that it was based on documentary evidence and should not be set aside.After hearing both parties and examining the record, the Tribunal noted that a significant portion of the initial demand related to excess electricity consumption had already been dropped. Citing a decision of the Hon'ble Apex Court, the Tribunal upheld this aspect of the order, finding no fault in it. However, regarding the demand confirmed for clandestine manufacture and clearance of MS ingots, the Tribunal observed that the Revenue's case relied heavily on records recovered from other entities without substantial corroborative evidence. The Tribunal highlighted that the law is clear that third-party records alone cannot establish clandestine removal without additional concrete evidence. Referring to various legal precedents, the Tribunal concluded that the demand based on insufficient evidence should be set aside. Consequently, the Tribunal allowed the appeal, overturning the demand confirmed in the impugned order.In conclusion, the Tribunal's decision in this case centered on the sufficiency of evidence linking the appellant to the alleged clandestine removal of MS ingots. While upholding the dropping of a major part of the initial demand, the Tribunal set aside the demand confirmed for duty evasion due to lack of concrete evidence beyond third-party records. The judgment underscores the importance of substantial corroborative evidence in cases of alleged duty evasion to establish a clear link between the accused party and the illicit activities.