2020 (7) TMI 355 - AT - Central Excise

Tribunal rules in favor of appellant due to lack of concrete evidence in clandestine procurement case.

M/s. Rooplaxmi Industries India Pvt. Ltd. Versus Commissioner of Central Excise, Raipur

The Tribunal set aside the Order-in-Appeal, ruling in favor of the appellant in a case involving alleged clandestine procurement and clearance of goods. ... Clandestine manufacture or removal - MS ingots and TMT Bars, flats, challans etc. - shortage of goods - correctness of reliability upon third party evidence - HELD THAT:- Since the sole challenge to the order is its reliance upon third party evidence, it is necessary to check the evidentiary value of the third party evidence - Reliance to be placed in the case of BAJRANGBALI INGOTS & STEEL PVT. LTD., SURESH AGARWAL VERSUS CCE, RAIPUR [2019 (1) TMI 966 - CESTAT NEW DELHI] where it was held that the findings of clandestine removal cannot be upheld based upon the third party documents, unless there is clinching evidence of clandestine manufacture and removal of the goods. There is no other evidence or document in the form of stock verification of the raw-material of the appellant and the material supplied to M/s. PIL nor any evidence about usage of any transportation by the appellants for transporting the alleged quantity of raw-material to M/s.PIL. In absence thereof the documents recovered from M/s.PIL cannot be held against the appellant. It is well settled law that there has to be some concrete evidence which would show clandestine manufacture of goods, as was reiterated by Tribunal, Delhi in the case of C.C.E. & S.T. -RAIPUR VERSUS P.D. INDUSTRIES PVT. LTD. [2015 (11) TMI 455 - CESTAT NEW DELHI]. The order confirming the recovery has no legal basis to sustain - Appeal allowed - decided in favor of appellant. Issues:1. Alleged clandestine procurement and clearance of goods by the appellant.2. Recovery of Central Excise duty, interest, and penalty from the appellant.3. Reliance on third-party evidence by the Department.4. Validity of the Order-in-Original passed by the Assistant Commissioner.5. Appeal against the Order-in-Appeal allowed by the Commissioner.Issue 1: Alleged Clandestine Procurement and Clearance of GoodsThe case involves the manufacturers of MS ingots who were suspected of engaging in clandestine activities. Central Excise Officers discovered shortages in raw materials and finished goods at the premises of another company, M/s. PIL. Incriminating documents were recovered, and the director of M/s. PIL provided statements under the Central Excise Act, 1944.Issue 2: Recovery of Central Excise DutyA show cause notice was issued to the appellant for the recovery of Central Excise duty, interest, and penalties based on allegations of supplying unaccounted raw materials to M/s. PIL. The Assistant Commissioner initially dropped the proceedings, but the Department filed an appeal. The Commissioner (Appeals) later allowed the Department's appeal, leading to the appellant filing an appeal before the Tribunal.Issue 3: Reliance on Third-Party EvidenceThe appellant argued that the Department relied on third-party evidence from M/s. PIL without conducting any investigations at the appellant's premises. The appellant contended that there was no corroborative evidence to support the allegations. The Department, however, maintained that the recovered documents from M/s. PIL sufficiently proved the appellant's involvement in supplying unaccounted raw materials.Issue 4: Validity of the Order-in-OriginalDuring the hearing, the appellant's counsel argued that the Order-in-Original dropping the proceedings was rightfully passed by the Assistant Commissioner. The appellant sought to set aside the order, citing case laws to support their position.Issue 5: Appeal Against the Order-in-AppealThe Tribunal analyzed the evidentiary value of third-party evidence in clandestine removal cases. Referring to relevant case laws, the Tribunal emphasized the need for concrete evidence to prove clandestine activities. It was noted that there was no evidence or documentation linking the appellant directly to the alleged activities. Consequently, the Tribunal set aside the impugned order, stating that the recovery had no legal basis to sustain, and allowed the appeal in favor of the appellant.This detailed analysis of the judgment highlights the key issues, arguments presented by both parties, and the Tribunal's decision in each aspect of the case.