2023 (11) TMI 1029 - AT - Central Excise

CESTAT sets aside order on clandestine removal allegations due to uncross-examined witness statements under section 9D

CESTAT Mumbai set aside the original order in a case involving alleged clandestine removal of MS ingots between September 2003 and July 2009. The ... Clandestine removal without entering in the production records - mild steel (MS) ingots - Penalties under rule 26 of Central Excise Rules, 2000 and section 11AC of Central Excise Act, 1944 - recovery of differential duty under section 11A of Central Excise Act, 1944 along with interest thereon under section 11AB of Central Excise Act, 1944 - between September 2003 and July 2009. The case of the central excise authorities, in a nutshell, is that raw materials procured from the open market was utilized to enable unreported production which is evidenced by inflated consumption of electricity during the reported heat cycles preferring to take cover under inefficient performance per cycle. HELD THAT:- From an analysis of the facts, it would appear that correlation of certain factors concerned with production do not suffice for establishing the extent of evasion, if any; at best, these aspects may corroborate the allegation of clandestine removal of evasion of duties of central excise. Doubtlessly, evidencing of clandestine removal must rest upon preponderance of probability as direct evidence is rarely possible, but interferences must indicate both probability and preponderance. Normally, it should happen that goods that have reached the market are traced to the assessee through a backward trail or raw materials that originated from a source be traced through forward trail to assessee. Ideally, both should converge but, for the purpose of ordering clandestine removal, one or the other would suffice; that is the true spirit of preponderance of probability - In the present instance, there are no whiff of the former whereas of the latter, there is ‘free floating’ evidence of procurement of ‘sponge iron’ and ‘BP sets’ by the assessee; nonetheless, the trail of investigation for linking delivery of alleged procurement of these raw materials and consumables at the premises of the assessee rests solely upon certain statements. Unless those statements are tested for acceptability, connecting of dots will hardly reveal the hidden picture. The witnesses relied upon by the central excise authorities are not acceptable evidence in the absence of cross-examination that was denied. The impugned order fails on that ground but, as the request for cross-examination had been rejected deliberately, availability or amenability to production for cross-examination is not in question. The impugned order set aside - matter remanded back to the original authority for fresh determination on the facts and evidences limiting reliance to such statements that have crossed the hurdle of ‘relevancy’ prescribed in section 9D of Central Excise Act, 1944 - appeal allowed by way of remand. Issues Involved:1. Allegation of clandestine removal of mild steel ingots.2. Disproportionate consumption of electricity.3. Procurement and utilization of raw materials.4. Evidentiary value of statements and cross-examination.Summary:1. Allegation of Clandestine Removal of Mild Steel Ingots:The case revolves around the alleged clandestine removal of mild steel ingots by the assessee, M/s Shree Steel Castings (P) Ltd, between September 2003 and July 2009. The assessee was held liable for recovery of differential duty under section 11A of the Central Excise Act, 1944, along with interest under section 11AB and penalties under section 11AC. The central excise authorities claimed that the assessee removed ingots without accounting for them in production records, based on the consumption of raw materials and electricity.2. Disproportionate Consumption of Electricity:The central excise authorities based their case on the disproportionately high consumption of electricity for the reported production. They relied on studies, including the Dr. Batra report and a study by the All India Induction Furnace Association, which provided normative data for electricity consumption in ingot production. The actual consumption by the assessee was found to be significantly higher than these norms, leading to the conclusion that unreported production took place.3. Procurement and Utilization of Raw Materials:The authorities alleged that raw materials procured from the open market were used for unreported production. The discrepancy in the records of BP sets and the unaccounted procurement of sponge iron were used to support this claim. The investigators also noted the consumption pattern of ferro alloys and other inputs, which indicated suppressed production.4. Evidentiary Value of Statements and Cross-Examination:The Tribunal emphasized the importance of cross-examination for the statements relied upon by the central excise authorities. The statements of drivers and suppliers, which were used to establish the procurement and utilization of raw materials, were not tested for acceptance under section 9D of the Central Excise Act, 1944. The Tribunal cited several judicial precedents, including Mohan Steels Ltd and Ghodavat Pan Masala Products Ltd, which held that theoretical assumptions and statements without corroborative evidence cannot sustain a charge of clandestine removal.Conclusion:The Tribunal set aside the impugned order due to the lack of cross-examination of key witnesses and remanded the matter back to the original authority for fresh determination. The reliance on statements must be limited to those that meet the relevancy criteria prescribed in section 9D of the Central Excise Act, 1944. The appeals were disposed of accordingly.