ement of various persons connected to the appellants were also recorded. On completion of the investigation, show cause notice was issued to demand and recover central excise duty from the appellant on account of clandestine clearance of excisable goods. The appellants defended their case and submitted against the proposals made in the show cause notice. The demand covered the period from July, 2010 to June, 2011. The Original Authority issued the impugned order, which is now contested before us.
2. Ld. Counsel appearing for the appellant submitted on the following lines:-
(a) The impugned order was a non-speaking one. Various legal and factual points raised by the appellant have not been dealt with by the Original Authority.
(b) The case of the Department is based on four private note books seized from the residence of Shri Sarma on 9.12.2011. In his statement given on 10.04.2012 and 11.04.2012 and also during cross examination on 19.3.2015, Shri Sarma had explained in detail about the nature and scope of such entries made in the private records. It is categorically stated that the said entries were mainly fabricated by him to take revenge against the appellant company on personal enmity.
(c) There were serious discrepancies between statutory records and seized note books. This point has been highlighted with the illustrative examples with reference to stock of iron ore, iron pellets, etc.
(d) The names of seller of raw materials and buyers of finished goods were also mentioned in the private record, which was relied upon by the department. No verification with any of these sellers/buyers have been carried out by the Revenue. Similarly, no effort was made to contact the transporters to substantiate the allegation of clandestine clearance.
(e) M.S. ingots were made from sponge iron and some scrap. The sponge iron in turn is manufactured from iron ore. Each of this process involve certain percentage of loss. The allegation of clandestine manufacture and clearance of 6554 MT of M.S. Ingots is factually not tenable. The said manufacture would require at least 7335 MTs. of sponge iron as per the percentage calculation made by Revenue itself. To manufacture this quantity of sponge iron, the appellants would require 11642 MTs of iron ore even assuming the highest recovery at 63%. These figures will show that there is no evidence to such a quantity of goods having been manufactured by the appellant.
(f) Further, M.S. Ingots are only made from sponge iron. Duty cannot be demanded both on M.S. Ingots and Sponge Iron. Any duty paid on such input materials shall also be available as a cenvat credit.
(g) There is no corroboration of the details entered in the lose sheet recovered from third party. The stock taking has not been properly made. The panchnama did not mention the manner of stock taking and the Commissioner has used his personal knowledge to justify the correctness of the stock mentioned in the panchnama. The shortage, if any, of raw materials (ingots) when compared to one year production will come to hardly 0.2%. The Revenue did not examine the other parameters like electricity consumption, the expenditure incurred for manufacture in order to corroborate to unauthorized manufacture and clearance of excisable goods.
(h) A demand of Rs. 72.04 lakhs was confirmed jointly and severally against the two appellants. This is not legally sustainable.
3. Ld. AR supported the findings of the impugned order. He submitted that the searches were carried out by the officers in four different places and various incriminating documents were recovered. Shri S.V.S. Sarma was working as Director of the main appellant. The note books containing details of finished goods sold and payment received, raw materials purchased and payment. These records were maintained by Shri Sharma as per the directions of Shri Pradeep Agarwal, Director of the main appellant.
4. Ld. AR submitted that large number of entries in the private records tallied with entries in the statutory records. This indicates the admissibility of private records to form basis of clandestine unaccounted clearance wherever, the entries were not tallied with the statutory records. Ld. AR relied on the various decided cases to submit that unretracted confessional statement and private records, which were not disputed and form basis of confirmation of duty.
5. We have heard both the sides and perused the appeal records.
6. At the outset, we note that the impugned order did not deal with all the factual and legal submission made by the appellant before the Adjudicating Authority. Some of the crucial point were not examined that formed the basis formed for arriving at the conclusion of clandestine manufacture and clearance, as mentioned by the appellant. To manufacture the alleged quantity of M.S. Ingots and Sponge Iron, the appellants require huge quantities of raw materials. This aspect has not been considered analytically for a finding. It is relevant to note that if the appellant manufactures un-accounted quantity of both the M.S. Ingots and Sponge Iron and Sponge Iron have been used for further manufacture of M.S. Ingots, duty cannot be confirmed on both. On reliance placed on records recovered from Shri S.V.S. Sarma, the appellants' contention is that Shri Sarma explained accounts in his statement dated 10.04.2012 and 11.04.2012 and further, during cross examination on 19.03.2015. It is not clear as to how the Original Authority preferred statement dated 19.02.2011 over the statements dated 10.04.2012 and 11.04.2012, with deposition during cross examination. The Original Authority simply records that the latter statement and deposition in cross examination are mainly to mislead the investigation.
7. In the adjudication proceedings, we note that it is important in such situation, to have independent corroboration about the reliability of such private records. If all statements and deposition during the cross examination are admittedly voluntarily made, preference for one statement ignoring other such statement and deposition during the cross examination, can be made when supported with due corroboration.
8. One other important legal issue raised by the appellant is regarding confirmation of duty demand against two appellants jointly and severally. We find that such course of action is not legally sustainable. For short payment of central excise duty, the assessee, who is liable to pay such duty has to be identified and duty demand confirmed.
9. In Golden Tobacco : 2015 (317) ELT 164 (Tribunal-Delhi), the Tribunal observed as below:-
"5. Legal issue as to whether demands can be confirmed jointly and severely was the subject matter of various decision of the Tribunal. One such reference can be made to Tribunals' order in the case of Sree Aravindh Steels Ltd. v. Commissioner of Central Excise, Trichy - 2007 (216) E.L.T. 332 (Tri.-Chennai). Further, reference can be made to Tribunal's decision in the case of Rimjhim Ispat Ltd. v. CCE, Kanpur : 2013 (293) E.L.T. 124 (Tri.-Del.) as also to the Hon'ble Gujarat High Court decision dated 13-4-2011 in the case of Commissioner v. Mahesh Harlalka vide which the Tribunal's order setting aside the impugned order of the lower authorities confirming the demand jointly and severely, therefore set aside and the matter was remanded, stands upheld by High Court."
10. Apart from the above infirmity, on the facts and law, we also note that the various serious discrepancies between statutory records and seized note books have been raised with specific instances by the appellants. These aspects also have not been duly considered by the Original Authority.
11. Considering the above discussions, we note that the impugned order as it stands cannot be sustained. The same is set aside and the matter is remanded back to the Original Authority for a fresh decision after considering all the legal and factual issues raised by the appellant. Adequate opportunity shall be provided to the appellant to present their side of the case before a decision is arrived at. The appeals are allowed by way of remand.
[Order pronounced on 19.01.2018]