1. The appeal has been filed from the impugned order passed by the Principal Commissioner dated 20/12/17. By the impugned order, the ld. Commissioner confirmed the demand of Central Excise Duty of Rs. 17,21,815/- along with the interest and penalty on M/s. G.P. Global Industries Pvt. Ltd. for clandestine removal of 580.950 MTs of MS ingots. Penalty has also been imposed upon Shri Sapan Khetan in terms of Rule 26 of Central Excise Rules, 2002.
2. Ld. Counsel for the appellants submit that the entire case of the department is based upon the entries in the diary recovered from one Mr. S.K. Pansari (proprietor of M/s. Monu Steels) and also on the statement of the said Mr. S.K. Pansari, without their being any corroborative evidence. The Ld. AR appearing for the Department reiterated the findings in the impugned order. He also submitted that the ld. Commissioner in the impugned order has specifically recorded that Shri Sapan Khetan, director of M/s. G.P. Global India Pvt. Ltd. had acknowledged the clearance of 580.950 MTs of MS ingots in his depositions made in Section 14 of Central Excise Act and the same has not been retracted by him.
3. So far as the statement of Shri Sapan Khetan is concerned, while going through the same, I found that he nowhere acknowledge the clearance of 580.950 MTs of MS ingots. Rather he stated as under:-
"That they had not cleared/removed MS ingots through the said commission agent, without issue of sales invoices or without payment of Central Excise duty.
In respect of all the clearances of MS ingots they had issued Central Excise invoices and had removed the goods on payment of duty."
4. The finding of the Ld. Principle Commissioner about the statement of Shri Sapan Khetan in para 3.5.12 of the impugned order is based upon the mis-interpretation of his following statement:-
"That he has seen and gone through the relevant records registered diaries recovered by the Central Excise officer on 15/1/2007 from the premise of M/s. Monu Steels (Prop. Shri S.K. Pansari), Commission Agent, Raipur and after seeing the entries pertaining to his unit and satisfying that Annexure-A has been prepared on the basis of such entries has affixed his signature on it, as a token of having seen and perused the same."
5. Therefore, apart from the third party statement, no other corroborative evidence has been produced by the Department.
6. The said show cause notice is mainly based upon the entries recorded in the dairy of third party i.e. one Sh. S.K. Pansari proprietor of M/s. Monu Steel. The entire case of the Revenue is based upon the records recovered from the said Sh. S.K. Pansari proprietor of M/s. Monu Steel.
7. The ld. Advocate for the Appellant submitted that merely on the basis of diary entry of third party without any corroborative evidence, the department is not justified in proceeding against the Appellant. The ld. AR submitted that on the basis of dairy entries of Sh. S.K. Pansari proprietor of M/s. Monu Steel the department had initiated proceedings against some other manufacturer also i.e. M/s. Sh. Shyam Ingot and Casting Pvt. Ltd. and M/s. Nutan Ispat & Power Pvt. Ltd., Raipur and that they accepted their irregularity and admitted the duty liability, and therefore on the basis of the same dairy entry the department is justified in proceedings against the appellants in the present matter.
8. Since some of the manufactures i.e. M/s. Sh. Shyam Ingot and Casting Pvt. Ltd. and M/s. Nutan Ispat & Power Pvt. Ltd., Raipur, whose names were also found in the dairy recovered from Sh. S.K. Pansari proprietor of M/s. Monu Steel, accepted their irregularities and admitted the duty liability, therefore no corroboration was required in those cases. But in the present case the appellant did not admit the liability and rather submitted that the Revenue has not adduced any corroborative evidence to show the movement of the goods from the premises of the appellant to the premises of any buyers or the customers nor they brought on record any evidence as to whose is buyers of the goods allegedly sold through M/s. Monu Steel. The ld. Counsel for the appellant also submitted that if the department's contention is accepted that there might be sale of clandestine removal of goods through M/s. Monu Steel, then the onus is on the department to make an enquiry from at least some of those customers who might have purchased such goods. However, no such enquiry has been made from any of those persons.
9. In the impugned order nowhere it has been discussed as to how the demand of duty is sustainable in the absence of any clinching evidence of clandestine manufacture and removal of the goods. The entire demand is based upon the records recovered from Sh. S.K. Pansari proprietor of M/s. Monu Steel. There is no evidence expect the said statement and private dairy entry of 3rd party i.e. of Sh. S.K. Pansari which contains the name of the appellant.
10. The law as to whether the third party records can be adopted as an evidence for arriving at the findings of clandestine removal, in the absence on any corroborative evidence, is well settled. Only on the basis of statement of third party no demand can be made. The Hon'ble High Court of Judicature at Allahabad in the matter of Continental Cement Company v. Union of India : 2014 (309) ELT 411 (All.) and also this Tribunal in the cases of Raipur Forging Pvt. Ltd. v. CCE, Raipur : 2016-(335) ELT 297 (Tri.-Del.), CCE & ST Raipur v. P.D. Industries Pvt. Ltd : 2016 (340) ELT 249 (Tri.-Del.) and CCE & ST, Ludhiana v. Anand Founders & Engineers : 2016 (331) ELT 340 (P&H), have categorically held that the findings of clandestine removal cannot be upheld based upon the third party documents unless there is clinching evidence of clandestine manufacture and removal of the goods.
11. In an identical matter this tribunal vide its order dated 04.04.2018 in Appeal No. E/50526-50527/2018 -SM titled as, Shree Consultants Pvt. Ltd. v. C.C.E. & S.T. Raipur set aside the demand which was also made only on the basis of the entries made in the records of M/s. Monu Steel and held as under:
4. I find that the entire case of the Revenue is based upon the records recovered from M/s. Monu Steels. Even in those records, the appellant's name has not been spelt correctly and it is based upon the statement of the representative of M/s. Monu Steels that the Revenue entertained a view that "S. Iron" refers to the appellant's clearances. When the Director of the appellant contacted by Revenue, he very clearly, in his statement recorded by the officers, deposed that he does not even know M/s. Monu Steels. Further, the Revenue has not made any enquiries from the buyer M/s. Sapna Steels and has solely relied upon the entries made in the record of M/s. Monu Steels.
5. The law i.e. as to whether the third party records can be adopted as an evidence for arriving at the findings of clandestine removal, in the absence of any corroborative evidence, is well established. Reference can be made to Hon'ble Allahabad High Court decision in the case of Continental Cement Company v. Union of India : 2014 (309) ELT 411 (All.) as also Tribunal's decision in the case of Raipur Forging Pvt. Ltd. v. CCE, Raipur-I : 2016 (335) ELT 297 (Tri.-Del.), CCE & ST, Raipur v. P.D. Industries Pvt. Ltd : 2016 (340) ELT 249 (Tri.-Del.) and CCE & ST, Ludhiana v. Anand Founders & Engineers : 2016 (331) ELT 340 (P&H). It stand held in all these judgments that the findings of clandestine removal cannot be upheld based upon the third party documents, unless there is clinching evidence of clandestine manufacture and removal of the goods.
In the absence of any corroborative evidence and in view of the law declared in the above decisions, I find no justifiable reasons to uphold the impugned orders. Accordingly, the same are set aside and both the appeals are allowed with consequential relief to the appellants."
Similarly this tribunal in the matter of Excise Appeal No. E/50874/2018-Ex [SM] M/s. Ashok Ispat Ud
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yog v. Comm. of C.Ex., CGST, Raipur & Excise Appeal No. E/50812/2018-Ex [SM] M/s. Vijay Chand Bothra v. Comm. of C. Ex., CGST, Raipur, set aside the demand since the same was based only upon the diary entries of Sh. S.K. Pansari proprietor of M/s. Monu Steel without their being any corroborative evidence. 12. Recently also this tribunal in a batch of matters being Appeal Nos. E/51117-51118/2018-SM and E/50940, 51236, 51241/2018 Arora (CG) Energy & Steel P. Ltd., v. CCE & ST Raipur vide common order dated 15.06.2018 set aside the demand since the entire case of the Revenue is based upon the entries made in the records of M/s. Monu Steel without there being any corroborative evidence. 13. In view of the above discussions and findings, the appeals are allowed and the impugned order is set aside. As a result the penalty imposed on Sh. Sapan Khetan, Director is also set aside.