2023 (10) TMI 1106 - AT - Central Excise

CESTAT sets aside Rs.16.5 lakh demands in clandestine removal case citing insufficient evidence and procedural violations

Shri Sanjay Nachrani, Director, Shri Anil Nachrani, Director and M/s. Sunil Sponge Pvt. Ltd. Versus Commissioner of CGST & Central Excise, Raipur, Chattisgarh

CESTAT New Delhi set aside multiple demands totaling approximately Rs.16.5 lakhs against an appellant in a clandestine removal case. The tribunal found ... Clandestine removal - shortage of finished goods - clearance made under parallel invoice number - evidences for which were gathered from various incriminating records recovered from its premises - department did not provide ‘non-relied documents’, neither examined the witnesses nor opportunity of cross-examination was given. Shortage of Billet - Demand of Rs.90,749/- - HELD THAT:- The physical stock taking had been done by way of estimation and there is no exact weighment done. Thus, the variation in the physical stock being less than 10%, is considered to be normal variation, not calling for any adverse inference. Accordingly, the demand of Rs.90,749/- set aside. Clearances under parallel invoice - Demand of Rs.69,648/- - HELD THAT:- The appellant had given cogent explanation during the course of investigation being – that as the goods were not accepted by the Saurabh Rolling Mills Pvt. Ltd., the same were diverted by way of sale in transit to M/s. Om Kiran Ispat Udyog - the court below erred in confirming this amount, solely based on the statement of the Director of Saurabh Rolling Mills, without examining the said Director in the adjudication proceedings. Such evidence is not reliable as in spite of request by the appellant, cross examination was not allowed. Thus, the evidence of Shri M.K. Gupta is hit by the provisions of Section 9 D of the Act - there is no other evidence or reason to reject the cogent explanation given by the appellant - Demand deleted. Goods rejected by consignee - demand of Rs.54,550/- & Rs.32,603/- - HELD THAT:- The goods were rejected by the consignee /buyer. The same were returned to the factory of the appellant. In his statement, Shri Sanjay Nachrani, Director had explained that the goods have been received back on the rejection by the buyer and further, in support thereof, submitted the goods receipt note for proper accounting of the same - Revenue had not made further investigation in the matter nor the cogent explanation found to be false - due to some error in record keeping or procedural lapse on the part of the appellant, the demand is held to be unsustainable - demand set aside. Evasion of Central Excise duty by Clandestine Removal - demand of Rs.3,98,700/- - HELD THAT:- For each of the instance/allegation, the appellant have given cogent explanation explaining the nature of kachcha parchies, which have not been found to be false. Further, no evidence has been found of any clandestine removal. Accordingly, the said demand o Rs.3,98,700/- is unsustainable and the same is hereby deleted. Evasion of Central Excise duty in respect of Finished Goods and Inputs respectively - Clandestine removal - demand of Rs.10,88,887/- - HELD THAT:- The demand is based on third party records. There is no corroboration nor any admission. Further, the said third party (Sunil Steels) have denied the evidence, as to have been maintained by them or at their instance. Thus, the demand is simply presumptive, hence the same is deleted. Removal of excisable goods clandestinely on the basis of incriminating notebook recovered and seized from the common office premises of the group companies - demand of Rs.1,94,514/- - HELD THAT:- The demand is confirmed on the allegation of clandestine removal. There is no basis to confirm the demand, based on rough note book and thus, the demand is presumptive. Hence, the same is set aside. The impugned order is set aside - appeal allowed. Issues Involved:1. Alleged shortage of finished goods.2. Clearance under parallel invoice.3. Clandestine removals under parallel invoice.4. Clandestine removal of excisable goods.5. Clandestine removal of billets.6. Clandestine removal based on records from consignee.7. Suppression of production and clandestine removal based on notebook.Summary:Issue 1: Alleged Shortage of Finished GoodsThe demand of Rs. 90,749/- was set aside as the physical stock taking was done by estimation and not exact weighment. The variation was less than 10%, considered normal, hence no adverse inference was drawn.Issue 2: Clearance Under Parallel InvoiceThe demand of Rs. 69,648/- was deleted. The appellant explained that goods initially sent to Saurabh Rolling Mills Pvt. Ltd. were diverted to Om Kiran Ispat Udyog due to rejection. The court found the explanation credible and noted the failure to allow cross-examination of the director of Saurabh Rolling Mills, making the evidence unreliable under Section 9 D of the Act.Issue 3: Clandestine Removals Under Parallel InvoiceThe demands of Rs. 54,550/- and Rs. 32,603/- were deleted. The appellant provided a cogent explanation that the goods were rejected by the consignee and returned to the factory, supported by a goods receipt note. The court found no evidence of clandestine removal.Issue 4: Clandestine Removal of Excisable GoodsThe demand of Rs. 3,98,700/- out of Rs. 14,41,275/- was deleted. The court found the demand based on kachcha parchies (unauthenticated rough notes) without corroborative evidence. The explanation provided by the appellant was found credible, and no evidence of clandestine removal was established.Issue 5: Clandestine Removal of BilletsThe demand of Rs. 38,58,809/- was already dropped by the adjudicating authority.Issue 6: Clandestine Removal Based on Records from ConsigneeThe demand of Rs. 10,88,887/- was deleted. The court found the demand based on third-party records without corroboration or admission. The third party (Sunil Steels) denied maintaining such records, making the demand presumptive.Issue 7: Suppression of Production and Clandestine Removal Based on NotebookThe demand of Rs. 1,41,514/- was set aside. The court found no basis for the demand, which was based on a rough notebook, making it presumptive.Conclusion:The appeals were allowed, and the impugned order was set aside. The court emphasized the need for concrete evidence in allegations of clandestine removal and noted procedural lapses such as the failure to provide non-relied documents and the denial of cross-examination.