Customs, Excise and Service Tax Appellate Tribunal, Kolkata: In an appeal filed by the appellant company challenging the demand confirmed by the Adjudicating Authority along with interest and penalty in the impugned order, the Bench of R. Muralidhar, Member (Judicial)* and Rajeev Tandon, Member (Technical), stated that mere tallying of certain entries, does not make these delible pencil handwritten loose sheets (‘loose sheets’) to be complete evidence of the purchases and sales and other details pertaining to the appellant. Thus, the Tribunal held that the confirmed demands were not legally sustainable on merit and consequently, set aside the excise duty demand.
Background
The appellant was a company which manufactures mild steel ingots using sponge iron, pig iron, cast iron etc. as raw materials. The officers of Directorate General of Central Excise Intelligence (‘DGCEI’) conducted search operations at the appellant company’s factory-cum-office premises and residential premises of its director’s brother-in-law along with other premises.
One spiral binding pocket diary (‘pocket diary’) from the director’s chamber, and loose sheets from the residence of director’s brother-in-law were seized. Physical stocks of raw materials and finished goods were taken. No excess/only shortages of stocks were detected.
Statements were recorded from various persons, and a show-cause notice was issued which alleged that the appellant company had cleared 5816.660 MT of M.S. Ingots of the value of Rs 19,13,71,626 which involved central excise duty of Rs 2,16,46,337.
The Adjudicating Authority (‘AA’) confirmed the demand along with interest and penalty. Also, a penalty was imposed on the director of the company.
Analysis and Decision
Upon close examination of loose sheets, the Tribunal noted that the document was not final and was prepared by two people as the handwriting of description and value entries were different. Since pencil was used for preparation, it made it capable of modification. Neither did the loose sheets contain any words specifying that it pertained to trial balance, nor was there any signature indicating who prepared the document. The Tribunal stated that mere tallying of certain entries, does not make out these loose sheets to be complete evidence of the purchases and sales and other details pertaining to the appellant.
With respect to the pocket diary, the Tribunal observed that there was nothing to indicate from that the entries therein were not pertaining to legally purchased and sold items. Further, after observing the entries in the diary, the Tribunal observed that the entries alone could not be relied on to alleged clandestine removal. Even if it was hypothetically taken as to be the correct figures, still the same has to withstand the scrutiny of corroborative evidence.
The Tribunal stated that the Panchanama recording did not indicate any shortage, either of the raw materials or the finished goods. The Tribunal examined the show-cause notice and noted that the demand quantification was the residual excess clearance, arrived at by finding the difference between the figures in loose sheets and pocket diary and actual clearances recorded. The Tribunal further noted that the AA had taken care not to demand the duty on the already accounted for clearances.
The Tribunal observed that out of 5 parties, the two who were enquired, were also not able to conclusively state that they had purchased goods on a cash basis without invoices from the appellant company. Further, no follow-up was made to the rest of the 3 parties. The Tribunal, hence, held that no proper follow-up verification/enquiry process was undertaken to ascertain whether any or all the alleged clandestinely removed goods reached any of the buyers.
Regarding the allegation of removal of 5816.660 MTs of finished goods, the Tribunal stated the purchases and sales would require movement of over 600 to 700 vehicles on each side. However, no statement from any vehicle owner about movement of goods without invoices was obtained. Further, to manufacture the finished goods, the appellant company should have consumed more electricity; however, the AA didn’t come up with any evidence of excess consumption of electricity. The Tribunal held that the investigation woefully fell short, by merely clinging to only the two main seized documents.
The Tribunal held that the confirmed demands by AA were not legally sustainable on merit. Hence, the Tribunal set aside the same and allowed the appeal without going into the time-bar aspect. The Tribunal went ahead and set aside the penalty imposed on the director and allowed his appeal.
[DD Iron & Steel (P) Ltd. v. Comm. (CGST & CCE), 2025 SCC OnLine CESTAT 2055, decided on 14-7-2025]
*Order by R. Muralidhar, Member (Judicial)
Advocates who appeared in this case:
For the Appellant company: K. Kurmy.
For the Respondent: S. Dey, Authorised Representative
