2025 (6) TMI 1165 - AT - Central Excise

Demand of equal amount of credit on the allegedly wrongly availed ineligible invoices - retraction of statements - allegation of the Revenue is that Appellant No.1 did not have required manufacturing facility to manufacture the goods on which CENVAT credit was claimed - HELD THAT - The mahazar was drawn on 08.12.2014 and the witnesses have voluntarily travelled from Madipakkam and Padi Chennai all the way to Mettupalayam Pondicherry only to participate and witness the mahazar proceedings. Annexure (A) is the inventory of physical stock of finished/semi-finished goods / raw materials consumables and machinery at the premises of the Appellant-firm. The condition of the above machinery as to whether they were in working condition or not is not clearly forthcoming as apparently none of the team members or even any of the witnesses is an expert to certify to that effect - Unfortunately other than the physical stock there is no other documentary evidence to accept the Revenue s contention and hence the allegation of the Revenue stands disproved. Appellant has equal responsibility here hence it should also place all such records of earlier years/periods relating to the visits and observations of the Excise Department. It is deemed appropriate to set aside the impugned order and the case remanded back to the Adjudicating Authority who shall consider all such relevant claims of the Appellant which are duly supported by documentary evidence shall also cause enquiries with the end-user viz. Godrej and pass a de novo speaking order in accordance with law. Appeal disposed off by way of remand.

Summary

The core legal questions considered by the Tribunal in these appeals are:

(i) Whether the Revenue was justified in demanding an equal amount of duty credit on allegedly wrongly availed ineligible invoices;

(ii) Whether the Revenue was correct in imposing penalties against all appellants.

Regarding the first issue, the relevant legal framework involves the provisions governing CENVAT credit under the Central Excise Act, 1944, and the procedural safeguards prescribed under Section 14 of the Act for recording statements during searches. Precedents cited by the appellants include several Tribunal decisions emphasizing the need for proper investigation and correlation of inputs and outputs before drawing adverse inferences. The Revenue relied on the principle that credit cannot be availed without receipt of inputs in the factory and contended that the appellant lacked the manufacturing facilities to use the alleged inputs, thus indicating procurement of finished goods through fictitious invoices.

The Tribunal examined the evidence and found that the Revenue did not categorically deny the existence of a manufacturing facility at the appellant's premises. The search and seizure proceedings, including the Mahazar and annexures, indicated the presence of raw materials, semi-finished goods, consumables, and machinery capable of manufacturing the final products. However, the Adjudicating Authority's order failed to consider or discuss the evidentiary value of these materials and machinery in detail. Stock-taking was found to be partial and incomplete, with omissions in accounting for work-in-progress and semi-finished goods. The Tribunal noted that the presence of specific raw materials essential for manufacture contradicted the Revenue's allegation that the appellant only procured finished goods.

Further, the Tribunal observed that no seizure of allegedly diverted materials was made during transit or at the alleged destinations, which were within the same jurisdiction. The appellant had also submitted a DVD purportedly showing production activity, which was not considered by the Adjudicating Authority. The Tribunal criticized the investigation as "half-hearted," pointing out the lack of expert opinion on the condition and usability of machinery, which was crucial to the Revenue's claim of non-manufacturing. The absence of a correlation between the volume of finished goods cleared and the quantity of raw materials used, as per the bill of materials, was also highlighted as a significant lapse in the Revenue's case.

Regarding the statements recorded during the search, the appellants contended that these were taken beyond the permissible hours under Section 14, were unsigned by the declarants after retraction, and hence could not be relied upon. The Revenue did not produce the persons for cross-examination despite summons, and some statements were disowned during cross-examination. The Tribunal found these contentions persuasive, noting that the statements lacked reliability and should not form the basis of adverse findings.

On the second issue concerning penalties, the Tribunal noted that the penalties were consequential to the duty demand. Since the fundamental allegation of wrongful credit availing was not established conclusively, the imposition of penalties was also questionable. The Tribunal did not explicitly decide on the penalty issue but indicated that the matter should be reconsidered after a fresh adjudication.

The Tribunal also addressed the appellants' contention that the principles of natural justice were violated due to non-consideration of retracted statements and other evidentiary materials. It found that the Adjudicating Authority's order was silent on these crucial aspects, thereby rendering the order unfair and opposed to natural justice.

In applying the law to the facts, the Tribunal emphasized the necessity of a thorough and balanced investigation, including verification with the end-user of the inputs, correlation of input-output quantities, and expert assessment of manufacturing facilities. The Tribunal directed that the matter be remanded to the Adjudicating Authority for a de novo hearing, with all relevant evidence and claims duly considered and reasonable opportunity afforded to the appellants.

Competing arguments from the Revenue that the appellant only procured finished goods and availed credit on ineligible invoices were weighed against the appellant's evidence of actual manufacturing activity and presence of raw materials and machinery. The Tribunal found the appellant's arguments more convincing due to the lack of conclusive evidence from the Revenue side and procedural irregularities in the investigation.

Significant holdings of the Tribunal include the following:

"The appellant is correct in its claim that the Revenue having not totally denied existence of manufacturing plant/facilities, without there being any adverse manufacturing activity noticed, they could not have simply asserted that there was no manufacturing activity at all."

"The investigation, according to us, is only a half-hearted attempt by the D.R.I. Hence, we are of the view that the investigating team should have at least obtained opinion of an expert in this regard since the Revenue is only denying the manufacturing facility of the Appellant-firm."

"Other than the physical stock there is no other documentary evidence to accept the Revenue's contention and hence, the allegation of the Revenue stands disproved."

"The presence of stock of various inputs including wires, patti, bore copper wires etc., on the date of inspection, most of which are specifically required for the manufacture of final products...has not been discussed at all for its evidentiary value."

"No seizure of any allegedly diverted material during transportation, or subsequent seizure at any of the alleged destinations...though the alleged destinations were within Pondicherry itself."

"The appellant shall be given reasonable opportunities of being heard; the Appellant should cooperate without seeking unnecessary adjournments, to enable the Adjudicating Authority to pass a de novo order within a period of 90 days from the date of receipt of our order."

The Tribunal's final determination was to set aside the impugned order and remand the matter for fresh adjudication. All contentions, including the penalty aspect, were left open for consideration in the de novo proceedings. The appeals were disposed of on these terms.