2021 (7) TMI 179 - AT - Central Excise

Tribunal upholds duty demand & dismissal of appeal due to lack of credible explanations & evidence

The Tribunal upheld the duty demand and dismissal of the appeal, citing the appellant's failure to provide credible explanations for the shortage and ... Clandestine removal - shortage of goods detected on stock taking - MS Ingots - production record for the respective day found not entered - recovery of loose documents - evidence proving the alleged guilt, present or not - failure to produce any positive evidence for proving the allegations as levelled in SCN - Absence of evidence - HELD THAT:- There is no denial on the part of the appellant about the noticed shortage of 182.340 MT of M.S. ingots. However, it is submitted that the same has duly been explained in the terms that the defective M.S. ingots were sent for being recycled/remanufactured. Apparently and admittedly, there is no evidence on record to support/corroborate the said explanation. Admittedly, the appellant was not maintaining any record of such defective M.S. ingots the noticed shortage which has otherwise not been denied to be a huge quantity shortage i.e. 292.560 MT ingots were found short out of 474.900 MT. It was mandatory for the appellant to maintain the requisite record. Rule 10 of Central Excise Rules, 2002 makes it mandate upon each assessee to maintain proper records that too on daily basis, in a legible manner indicating the particulars regarding description of the goods produced or manufactured, opening balance, quantity produced or manufactured, quantity removed, inventory of goods etc. - Admissions are the best evidence and need no further proof as is the established principle of Indian Evidence Act in Section 58 thereof. Hence the argument of the appellant that the department has not produced any evidence is not sustainable in the eyes of the admission of the appellant’s Director for the noticed shortage and for simultaneous non compliance of Rule 10 thereof. Apparently Shri Navnitya Prakash Goyal also has not tendered any explanation about those documents except he mentioned that the same will be explained by Shri Santosh, Lab Assistant thereof. However, no efforts were made by the appellant to produce Santosh before the adjudicating authority or too at least tendered his statement or any explanation given by him in the form of affidavit or by any other admissible mode of giving evidence before the adjudicating authority - No doubt these allegations cannot be based merely on the noticed shortage of M.S. ingots but definitely such allegations can sustain in the absence of any explanation for the noticed shortage. There is no proper explanation/evidence given by the appellant for the noticed shortage. The entire noticed shortage is not appealable to be defective. The only explanation given by the appellant is about those ingots to be defective without giving any supporting document of those defective ingots to either be recycled or remanufactured or cleared after being remanufactured. Appeal dismissed. Issues:1. Alleged evasion of Central Excise duty through suppression and clandestine removal of goods.2. Confirmation of duty demand based on shortage of M.S. ingots and unrecorded production.3. Admissibility of evidence and compliance with Rule 10 of Central Excise Rules, 2002.4. Allegations of clandestine removal based on recovered documents.5. Applicability of case laws and sufficiency of explanations provided.Analysis:1. The appellant was accused of evading Central Excise duty by suppressing production and clandestinely removing goods without payment. The Department discovered a shortage of 182.340 MT of M.S. ingots during a physical verification, leading to a duty amounting to Rs. 7,13,303. Further, 2486 ingots were not recorded in production records, indicating clandestine clearance.2. The appellant argued that the shortage was due to defective ingots sent for remanufacturing, supported by the Director's explanation. However, lacking evidence and record-keeping of defective ingots, the non-compliance with Rule 10 of Central Excise Rules was evident, justifying the duty demand.3. Rule 10 mandates maintaining proper daily records, which the appellant failed to adhere to, as admitted by the Director. Admissions serve as strong evidence under the Indian Evidence Act, making the Department's case sustainable based on the noticed shortage and non-compliance with record-keeping requirements.4. The allegation of clandestine removal was supported by recovered loose documents, which the appellant failed to explain satisfactorily. Despite claims of explanations by absent individuals, the appellant's failure to produce supporting evidence or witness statements weakened their defense.5. The Tribunal upheld the duty demand and dismissal of the appeal, emphasizing the lack of credible explanations for the shortage and clandestine removal. The cited case laws were deemed inapplicable, as the appellant failed to provide substantial evidence or documentation supporting their claims, leading to the unfavorable judgment.