Tax Management India. Com
                        Law and Practice: A Digital eBook ...

Category of Documents

TMI - Tax Management India. Com
Case Laws Acts Notifications Circulars Classification Forms Manuals SMS News Articles
Highlights
D. Forum
What's New

Share:      

        Home        
 

TMI Blog

Home List
← Previous Next →

2019 (11) TMI 430

..... party evidence - corroborative evidences or not - HELD THAT:- Only documentary evidence to proceed against the appellant is loose parchi No. 5 (RUD2) as recovered by the department during the search of premises of M/s RPSL recording the alleged shortage. Apparently, there is no documentary evidence corroborating the said RUD2. No doubt show-cause notice is mentioning that separate proceedings had been initiated against M/s RPSL, but till date department has not produced from record the status of such proceedings , if any, ever initiated. It is coming in the show-cause notice itself para-6 (C) thereof as acknowledgement by Mr. Pankaj Sharma that they never cleared any excisable goods without payment of duty. He also acknowledged that no incriminating document was recovered from their unit during the course of search conducted in appellant’s factory under Panchnama dated 05.02.2015. There is no denial of the department to the said acknowledgement/deposition nor any evidence contrary to that. In such circumstance the loose-parchi recovered from M/s RPSL cannot be corroborated from the statement of Manager, M/s RPSL irrespective having any admission for receiving unaccounted MS B .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... e received by M/s RSPL. In fact, the entire order is silent about the said consignment details also - Appellants are not denied to be the regular supplier of M.S. Billets to M/s RSPL as their law material. In such circumstances, total reliance upon the admission of third-party ignoring the deposition of appellant that entire supply to M/s RSPL is after payment of duty and the respective invoices is an apparent mistake on part of Commissioner (Appeals). Demand set aside - appeal allowed - decided in favor of appellant. - E Appeal No. 52449 & 52450 [SM] - FINAL ORDER No. 51434-51435/2019 - 7-11-2019 - MRS. RACHNA GUPTA, MEMBER (JUDICIAL) Shri Manish Saharan, Advocate for the Appellant Ms. Tamanna Alam, Authorised Representative (DR) for the Respondent ORDER The present order disposes of two appeals, the order-in-appeal bearing No. 002-113/18-19 dated 03.05.2018 being common and both appellants being co-notices. The facts in brief for the purpose are as follows: 2. M/s Aarti Sponge and Power Limited are engaged in manufacturing of sponge iron and MS billets. They are also availing the facility of CENVAT Credit scheme in respect of inputs of capital goods/input services used in manufac .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... hird party evidence is impressed upon to not to be the basis of confirming the serious allegations as that of clandestine removal. It is further submitted that there is no admission as is noted by Commissioner (Appeals) in the order-under-challenge, in the statement of Mr. Pankaj Sharma about supplying raw material to M/s RPSL without issuing invoices. It is further submitted that even before the issuance of show-cause notice the appellant had provided all relevant invoices qua the period of impugned demand with a consolidated chart thereof showing that no delivery of Billets has been made by the appellant to M/s RPSL without issuing irrespective invoice. The said evidence has miserably been ignored by the appellate authority. The order accordingly is prayed to be set aside and appeal is prayed to be allowed. Learned A.R per contra, while justifying the order-under-challenge has submitted that it is not at all the case of the third-party evidence as admittedly M/s RPSL were the purchasers of raw-material from the appellant. Above all, the invoices produced by the appellant differ in various particulars as that of transporters details, vehicle number, quantity and even date of deliv .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... ntary as well as oral are nothing more than a third-party evidence. Law has been settled that where the allegation of duty evasion is based on the documents and records procured or seized from other person or premises the burden of proof does not lie on the person accused of such evasion. As it was held in the case of Agrasen Syntex Pvt. Ltd. Vs. Commissioner Central Excise Hyderbad, ELT (154) ELT 431, Hon ble High Court Allahabad also in the case of Kumar Trading Company Vs. Commissioner of Trade Tax Lucknow reported as 208 (230) ELT 240 Allahabad has held that if the Revenue wants to rely upon the entry of the documents seized from the premises of third-party the burden lies upon the Revenue Authority to prove the genuineness and authenticity of the said entry and to connect the said entry with the dealer in case the dealer denies to have any connection with such entry. Commissioner (Appeals) herein has formed the opinion that since M/s RPSL was receiving raw-material from appellant, same cannot be held to the third-party, the said finding stands falsified in view of above adjudication of hon ble High Court. Also it has been the settled law that the loose papers/documents cannot .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... nand Founders & Engineers reported as 2016 (331) ELT 340 (P&H) has held that clandestine removal charges based on shortages in stock cannot be upheld in the absence of any other evidence brought on record by the Revenue showing such illegal activities on the part of an assessee. Hon ble High Court of Allahabad in the case of Continental Cement Co. Vs. Union of India reported as 2014 (309) ELT 411 (Allahabad) had earlier laid down the criteria of investigation to prove the allegation of clandestine sale in following words: Further, unless there is clinching evidence of the nature of purchase of raw materials, use of electricity, sale of final products, clandestine removals, the mode and flow back of funds, demands cannot be confirmed solely on the basis of presumptions and assumptions. Clandestine removal is a serious charge against the manufacturer, which is required to be discharged by the Revenue by production of sufficient and tangible evidence. On careful examination, it is found that with regard to alleged removals, the department has not investigated the following aspects: (i) To find out the excess production details. (ii) To find out whether the excess raw materials .....

X X X X X X X

Full Text of the Document

X X X X X X X

..... T 1198 Tribunal New Delhi has held that mere statement of the buyer is absolutely sufficient without support of any documentary evidence to prove as serious allegation as that of clandestine removal. 12. Finally, coming to the issue that the appellant on its own has deposited the Central Excise duty involved through their CENVAT credit account vide debit entry No. 1 dated 05.02.2015 though without any protest, it is held that mere deposit of some amount during investigation does not prove that goods have been admitted to have been cleared clandestinely. The possibility of persuasion of department cannot be ruled out as has been held by the Regional Bench, Chandigarh of this Tribunal in the case Sona Woolen Mills (supra). 13. Seen from the entire above discussions, I am of the opinion that department has failed to prove convincingly, cogently and in corroboration of the admissible evidence the allegations of clandestine removal of MS Billets by the appellant and even the shortage of raw material available with the appellant. The adjudicating authority below has failed to give the specific details of invoices which are different from the consignment details of the 304.820 MT of Bille .....

X X X X X X X

Full Text of the Document

X X X X X X X

 

 

← Previous Next →

 

 

|| Home || About us || Feedback || Contact us || Disclaimer || Terms of Use || Privacy Policy || Database || Members || Refer Us ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.
|| Blog || Site Map - Recent || Site Map ||