9911796707
TMI Blog2024 (6) TMI 492X X X X Extracts X X X X X X X X Extracts X X X X ..... cise Commissionerate, Jaipur-I had visited the factory premises of M/s. Kesri Steel Ltd., Bhiwadi on 25.02.2008. It was observed that S.S. Ingots and Alloys Ingots were being manufactured mainly by way of remelting of S.S. scrap already containing ingredients like magnesium, carbon, silicon, chromium, aluminum, cobalt, copper, nickel, sulphur etc. As per the various standards of manufacturing like Bureau of Indian standards (BIS), the percentage of copper for manufacturing of stainless steels/alloy steels should range between 0.0094 to 1.94%. However, quality inspection at the time of visit revealed that the acceptance criteria of copper was mentioned as 1.2 to 2%. Some test reports of the samples were also recovered from the laboratory of the manufacturers/Kesri Steels themselves wherein percentage of copper was shown as 0.12 to 1.24. The visiting team also observed that the manufacturer purchased 622.474 MT of copper during the period from 31.12.2004 to 25.02.2008, however, has shown to have consumed 616.211 MT during the period from 01.01.2005 to 25.02.2008. Thus, the ratio of consumption of copper against the production of S.S. Ingots and Alloy Steel Ingots during the period wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of communication this order. 1.2 The manufacturer has challenged the order for the demand as confirmed, however, department simultaneously has challenged the order with respect to the demand over and above Rs.12,06,902/- which has been dropped. 2. We have heard Shri G.K. Sarkar and Shri Prashant Srivastava, learned Advocates for the assessee and Shri Rakesh Agarwal, learned Authorized Representative for the department. 3. Learned counsel for the assessee has mentioned that the department has taken the percentage of copper content in the S.S. Ingots manufactured by the respondent to be average of 1.2% to 2.0% and has alleged that the consumption of copper to the tune of 616.211 MT shown as consumed for manufacturing of 5004.835 MT of S.S. Ingots and Alloy Steel Ingots showing 12.31% of copper content by the respondent during the period of dispute is incorrect as the actual consumption of copper could be only 80.077 MT. Hence, the allegations of clandestinely removing the remaining quantity of 536.134 MT of copper and availment of irregular Cenvat credit on the aforesaid quantity are absolutely baseless. The Original Adjudicating Authority pursuant to the directions of remand i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngly prayed to be dismissed. 4. While rebutting these submissions, learned Departmental Representative has mentioned that as per BIS norms, S.S. Steel/ Alloy Steel ranges between 0.0094 to 1.94%. However, from the test reports of sample recovered from assessee's laboratory, the percentage of copper was shown as 0.12 to 1.24%. The department had picked up three samples from the assessee's manufacturing unit and got those tested from CRCL, New Delhi. The test result showed the copper percentage from 0.95 to 1.01% except that one inspection report about sample from M/s. Nalwa Steels Udyog manufactured by assessee showed the percentage of 0.66%. It is impressed upon that the adjudicating authority below has wrongly considered the said one report as contrary to three reports supporting the department's case. The major demand is alleged to have wrongly been dropped. 4.1 It is further submitted that act of the assessee about not following the BIS norms while manufacturing S.S. and Alloy Ingots clearly establishes the fact that percentage of copper actually used in manufacture was very low. This amounts to concealment/misrepresentation on part of the assessee. The extended period h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yments have been received and made by the assessee through proper banking channel. 5.3 These observed admitted facts are sufficient for us to hold that the allegations of clandestine removal of the final product of assessee are merely presumptive allegations. This Tribunal in Century Metal Recycling Pvt. Ltd. (supra) has held that when there is no documentary evidence of clandestine removal of raw material i.e. transport details, buyer details, financial transactions etc. adduced, in the absence of the corroborative evidence, statutory records cannot be discarded merely on the basis of wrong interpretation and the presumption alleging the Cenvat credit as inadmissible is held unsustainable in that circumstance. In Suzuki Synthetics Pvt. Ltd. reported as 2015 (318) ELT. 487 (Tri- Ahmd.), the Tribunal observed that if the case of clandestine removal is to be sustained based on private records then the same is required to be supported by corroborative evidence with regard to purchase of raw material, manufacture of final goods, flow-back of money or identification of the buyers and their statement, etc. In Arya Fibers Pvt. Ltd. reported as 2014 (311) EL.T. 529 (Tri.-Ahmd.) the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the report which supports assessee is held to be the violation of principal of natural justice. 5.5 Despite accepting that the S.S. and Alloy ingots manufactured by assessee have 11.9% of copper, the original adjudicating authority has still confirmed the demand/reversal of Cenvat credit availed on 20.636 MT of copper ingots. The findings that the said amount of copper ingots have been diverted clandestinely without payment of duty have not discussed any evidence to this effect. As already observed above, that to prove the allegations of clandestine production and removal thereof, there has to be a cogent evidence on various criteria and parameters as discussed above. There has been found no supporting or corroborative evidence to sustain the allegations of clandestine removal as no raw material was found unaccounted nor even the final product. There is no evidence about transportation of 20.636 MT of ingots from the appellant to anybody else without payment of duty. No shortcomings have been noticed in the accounts maintained by the assessee. Thus, there is no iota of evidence or investigation made by the department to prove that the raw material of the assessee as shown to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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