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2025 (5) TMI 1012 - AT - Central ExciseClandestine removal of Sponge Iron - demand based on the evidence and materials recovered during the search and investigation - demand raised on the basis of the input output ratio arrived at by the Department based on the expert opinion received - HELD THAT - It is observed that only based on the input-output ratio taking the Fe content of the ore the allegation has been built up without looking the other quality aspect of the materials i.e. tumbler index in the Iron ore and FC content on the coal which are vital factors for determination of actual production. The expert opinion relied upon in the Order-In-Original also give stress on these aspects but the Ld. Commissioner has ignored this aspect to confirm the demand. The law is well settled that the electricity consumption cannot be the only factor or basis for determining the duty liability that too on imaginary basis. It is well known and accepted that the electricity consumption varies from one unit to another and from one date to another and even from one heat to another within the same date. There is therefore no universal and uniformly acceptable standard of electricity consumption which can be adopted for determining the excise duty liability that too on the basis of imaginary production assumed by the department with no other supporting document to justify its allegations. The Revenue has not brought in any corroborative evidence to the effect that the manufactured goods have been cleared clandestinely and cash transactions have taken place. No statements have been recorded from any of the purported buyers vehicle owners. No private records with reference to the cash transactions have been seized. All these make us to conclude that the Department has proceeded purely based on the assumptions and presumptions basis without verifying their allegations. It is observed that clandestine removal of goods is a serious offence which requires to be established with tangible clinching and corroborative evidence. In this case there is no tangible or corroborative evidence in respect of purchase of raw materials use of excess electricity actual removal of final products actual movement of clandestine removals the mode and flow back of funds excess purchase of input materials production details statement of buyers etc. so as to bring home the allegation of clandestine removal. Since the demand itself is found to be unsustainable the question of demanding interest or penalty on the appellant-company thereon does not arise. Penalty on Managing Director of the appellant-company - HELD THAT - It is observed that the allegation in the Show Cause Notice is that the appellant no. 2 / Managing Director was actively involved in the manufacture and clandestine removal of the goods in question. However it is seen that there is no evidence brought on record by the Revenue regarding the actual involvement of the Managing Director in the alleged offence. Further in view of findings above wherein the allegation of clandestine removal has been held to be not sustainable the allegation against the Managing Director also does not sustain. Hence the penalty imposed on Managing Director of the appellant-company under Rule 26 of the Central Excise Rules 2002 set aside. Conclusion - The demand of duty and imposition of penalties based solely on presumptions drawn from input-output ratios and electricity consumption without direct evidence of clandestine removal is unsustainable. Appeal disposed off.
1. ISSUES PRESENTED and CONSIDERED
The core legal questions considered by the Tribunal include: (a) Whether the appellant engaged in clandestine removal of Sponge Iron without payment of central excise duty based on the evidence and materials recovered during the search and investigation; (b) Whether the demand of Rs.1,62,21,368/- along with interest and penalties imposed under the relevant provisions of the Central Excise Act, 1944 (hereinafter 'the Act') and Central Excise Rules, 2002 is justified and sustainable; (c) Whether the reliance on expert opinions regarding input-output ratios and electricity consumption to infer clandestine production is legally and factually valid; (d) Whether the computer printouts purportedly taken from the seized pen-drive are admissible evidence under Section 36B of the Act and whether the procedural safeguards for such electronic evidence were complied with; (e) Whether the principles of natural justice were complied with, particularly regarding the appellant's request for cross-examination of witnesses and persons involved in preparation of incriminating documents; (f) Whether the penalties imposed on the appellant and its officers under Section 11AC and Rule 26 of the Central Excise Rules, 2002 are justified; (g) Whether the findings of the adjudicating authority and the Commissioner are supported by cogent evidence beyond mere presumptions and assumptions. 2. ISSUE-WISE DETAILED ANALYSIS Issue (a) and (b): Clandestine removal and confirmation of demand of duty, interest, and penalty The legal framework governing clandestine removal is contained in the Central Excise Act, 1944, particularly Sections 11A, 11AA, 11AB, and 11AC, which empower the authorities to demand duty, interest, and impose penalties where clandestine removal is established. The burden lies on the Revenue to prove clandestine removal beyond reasonable doubt. The Tribunal noted that the Revenue's case primarily rests on:
The appellant challenged these findings on grounds that the alleged clandestine removal is based on mere presumptions drawn from higher input consumption and power usage, without any direct evidence of excess production or physical removal of goods. The appellant's Managing Director explained that variations in iron ore 'Fe' content, ongoing commissioning activities, and operational factors accounted for the higher input and power consumption. These explanations were not rebutted by the Revenue with cogent evidence. The Tribunal observed that the Revenue failed to produce evidence such as transportation records, buyer statements, payment receipts, or any physical movement of goods to substantiate clandestine removal. The handwritten statement was not authenticated, and the person who prepared it was not examined. The adjudicating authority relied heavily on assumptions and expert opinions without corroborative evidence. The Tribunal referred to settled judicial principles that clandestine removal cannot be presumed on input-output ratios or electricity consumption alone, especially when such parameters vary widely based on operational conditions. In application of law to facts, the Tribunal found that the Revenue did not discharge its burden of proof. The absence of direct evidence of clandestine removal, coupled with the appellant's plausible explanations and lack of rebuttal, rendered the demand unsustainable. Issue (c): Reliance on expert opinions regarding input-output ratio and electricity consumption The Revenue relied on expert opinions from several organizations to establish standard input-output ratios and power consumption norms for Sponge Iron production, and alleged deviations indicated clandestine manufacture beyond recorded quantities. The appellant contended that these opinions were tentative, non-standard, and generalized, not tailored to the appellant's plant or operational conditions. The experts themselves acknowledged that input-output ratios and power consumption depend on variables such as ore quality, tumbler index, coal characteristics, and plant-specific factors. The Tribunal noted that the adjudicating authority ignored these caveats and selectively relied on the experts' reports to draw adverse inferences. The Tribunal emphasized that expert opinions cannot substitute for direct evidence and that such technical data must be considered in the context of the specific facts and operational realities of the appellant's unit. The reliance on electricity consumption as a sole or dominant basis for determining clandestine removal was held to be legally untenable, consistent with precedents cited by the appellant. Issue (d): Admissibility of computer printouts from seized pen-drive under Section 36B Section 36B of the Act provides that computer printouts are admissible as evidence subject to fulfillment of prescribed conditions, including proper seizure, sealing, and authentication procedures. The appellant argued that the printouts from the pen-drive were inadmissible because:
The Tribunal found that these procedural lapses rendered the printouts inadmissible as evidence. The adjudicating authority failed to consider these vital submissions and did not issue a speaking order on this point. The Tribunal held that reliance on such inadmissible evidence to confirm demand violates principles of natural justice and statutory safeguards. Issue (e): Compliance with principles of natural justice and cross-examination rights The appellant requested cross-examination of persons involved in preparation of incriminating documents, including the laboratory in-charge and the person who prepared the pen-drive data. The adjudicating authority denied this request, stating the appellant did not stress for cross-examination at the hearing. The Tribunal observed that the right to cross-examination is a fundamental aspect of fair adjudication, especially when adverse inferences are drawn from statements and documents prepared by third parties. The denial of cross-examination without proper consideration violates natural justice and undermines the reliability of evidence. The Tribunal found the adjudicating authority's reasoning on this point to be unsatisfactory. Issue (f): Justification for imposition of penalties on appellant and officers The penalties under Section 11AC and Rule 26 of the Central Excise Rules, 2002 were imposed based on the confirmed demand of clandestine removal. Since the Tribunal found the demand itself unsustainable due to lack of evidence and procedural infirmities, the penalties imposed on the appellant and its officers were also held to be unjustified. Issue (g): Sufficiency and reliability of evidence to sustain findings The Tribunal reiterated that clandestine removal must be proved beyond reasonable doubt by the Revenue through reliable and corroborated evidence. Mere presumptions, assumptions, or reliance on expert opinions without factual foundation are insufficient. The absence of transportation records, buyer or transporter statements, payment trails, and physical evidence of goods movement critically undermined the Revenue's case. The Tribunal also noted that statements recorded under duress or without proper procedural safeguards cannot be the sole basis for confirmation of demand. 3. SIGNIFICANT HOLDINGS The Tribunal held: "The demand of duty and imposition of penalties based solely on presumptions drawn from input-output ratios and electricity consumption, without direct evidence of clandestine removal, is unsustainable." "Expert opinions regarding standard input-output ratios and power consumption cannot be generalized or applied without considering plant-specific variables and operational realities." "Computer printouts purportedly taken from a seized pen-drive are inadmissible evidence under Section 36B of the Act unless procedural safeguards of seizure, sealing, authentication, and chain of custody are strictly complied with." "Denial of cross-examination of persons involved in preparation or maintenance of incriminating documents violates principles of natural justice and affects the reliability of evidence." "The Revenue must establish clandestine removal beyond reasonable doubt with cogent and corroborative evidence; mere assumptions or technical opinions without factual foundation do not suffice." Accordingly, the Tribunal set aside the confirmed demand of central excise duty, interest, and penalties imposed on the appellant and its officers, and quashed the impugned order-in-original.
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