Facts
On 23-11-2007, simultaneous search was conducted by the DGCEI Officers at the factory and office premises of the Appellant company.
In the course of search at Office, one USB Drive (Pen Drive) was recovered from one of the “Computer Table Drawer”, which was being used by Shri Ajay Kumar Behera, Computer Operator.
The said pen drive contained a Tally package, which was in locked condition with a Username and Password.
The Tally package was opened with the User ID and Password revealed by Shri. Ajay Behera.
The Data available in the pen drive were for the period from June 2005 to March 2007. From the data available in the pen drive, Print outs of Sales Registers and Purchase Registers were obtained in the presence of Shri. Ajay Behera and Shri. Ajay Kumar Kadmawala, Director.
Submission
The Appellants submitted that the dispute in the instant case relates to the period from 2005-06 to 2007-08 (upto November’2007) and search was conducted on 23-11-2007 while the Show Cause Notice was issued on 08-04-2010 i.e. after expiry of more than 29 months, hence, the demand is barred by normal period of limitation of one year.
A.R. submitted that the data relating to sale and purchase of goods maintained under the ‘Tally Package’ was de-coded with the user ID as ‘bajaj’ and Password No. 0292 which was revealed by the computer operator Shri Ajay Kr. Behara.
Decision
The division bench of Ashok Jindal Member (Judicial) and K. Anpazhakan Member (Technical) found that the investigation has not brought in any corroborative evidence to substantiate the allegation of clandestine removal. In view of the above findings, we hold that the investigation has failed to establish the alleged clandestine clearance of goods by the Appellants and hence the demands confirmed in the impugned order are not sustainable.
The bench observed that the allegation of the department is that most of the unaccounted clearances of Silico Manganese were sold in cash. As per the cash register, Rs.7crores were received as cash during the relevant period.
The Tribunal further observed that the revenue has failed to corroborate unaccounted clearance available in the data retrieved from the pen drive by verification at the customer’s end. Since we have already held that the data recovered from the pen drive does not have any evidentiary value, the conclusion arrived at by the investigation with one verification cannot be considered as corroborative evidence for the clandestine clearance of entire 3474.950 MT of Silico Manganese alleged to have been cleared through cash transaction.
The bench set aside the demands of duty confirmed in the impugned order.
Case title: Attitude Alloys (P) Ltd. v/s Commissioner of Central Excise, Bhubaneswar
Citation: Excise Appeal Nos. 517-519 of 2011