TMI Blog2009 (10) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... s neither made out a good case on merits to be considered by Appellate Tribunal not proved undue hardship to waive condition of pre-deposit of Basic Excise Duty and penalty. - 231 and 145-147 of 2009 - - - Dated:- 5-10-2009 - Sunil Ambwani and Virendra Singh, JJ. S/Shri S.D. Singh and Akash Deep Srivastava, for the Appellant. Shri S.P. Kesarwani, SSC, for the Respondent. [Order]. - Heard Shri S.D. Singh learned counsel for the appellant. Shri S.P. Kesarwani appears for the opposite parties. 2. All these four Central Excise Appeals, under Section 35G of the Central Excise Act, 1944, arise out of the orders passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi [2009 (246) E.L.T. 457 (Tri. - Del.)] in Central Excise Appeal Nos. 446, 447, 448 and 449 of 2009 by the appellant-company and the three directors of the company, against the adjudication order of the Commissioner, Central Excise, Noida dated 23-9-2008 confirming the payment of Central Excise Duty (including cess) amounting to Rs. 2,68,12,628/- (Rs. Two crores sixty-eight lacs, twelve thousands six hundred and twenty eight) and also the penalty of the like amount, on the company under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r as follows :- "6. On physical stock verification of the stock of finished excisable goods and raw material, the officers found finished goods namely M.S. Flat weighing 14840 Kgs and raw material viz misroll weighing 44980 Kgs in the factory premises of the party. However the party could not produce any record/documents relating to stock of raw material and finished goods. Preliminary scrutiny of resumed records revealed that their value of clearances of excisable goods during the year 2007-08 (up to 25-7-2007) has already exceeded SSI exemption limit of Rs. 1.5 Crores and as it prima facie appeared that the party has indulged into clandestine production and removal of excisable goods which were liable to be charged to duty. It further appeared that the stock of finished excisable goods manufactured and lying in the factory premises of the party, being chargeable to central excise duty, was liable for confiscation under Section 110 of the Customs Act, 1962 as made applicable to the central excise matters read with Rule 25 of the Central Excise Rules, 2002. Similarly, the stock of raw materials, kept unaccounted by the party with an intent to use the same in the manufacturing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the department inasmuch as he has appeared twice before the Superintendent (AE), Noida in compliance to the summons issued but it was only on 12-12-2007 that the officers and no records were resumed from their factory. The aforesaid statement of Shri R.P. Bansal was also in contradiction to the proceedings as drawn under panchnama dated 25-7-2007 drawn in the presence of two independent witnesses and Shri Sunil Bansal in which the fact of recovery of resumed records have been recorded correctly and truthfully. It appeared that the aforesaid act of Shri R.P. Banswal appears to be an afterthought with an intent to avoid penal consequences. 60. When the above said notices not filed any written defence to the said show cause notice within a period of 1 month, vide this office letter dated 14-8-2008, they were requested to file the same. Thereafter, vide this office letter dated 18-8-2008, it was informed to the noticees that personal hearing in this case has been fixed for 28-8-2008 has been changed to 2-9-2008, it was when none of the noticees or their representative failed to represent their case on the prescribed date, vide this office letter dated 3-9-2008, they were allowed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoice book was produced by them. They also failed to produce the invoice relating to removal of said finished goods in the above said truck no. UP-47-1-7778 which was intercepted by the officers in transit. It is very significant fact that although no record of the party was available in the factory premises nor any invoice book was available in the factory premises but the invoice book of M/s. Rahul Enterprises was available in the factory premises. Furthermore, the said invoice book contained third copy of bill No. 111 dated 25-7-2007 only and that no copy of bills from Sl. 101 to 110 was available in the said book. Shri Sunil Bansal could not explain as to why the said bill book of M/s. Rahul Enterprise was available in their factory premises whereas no representative of M/s. Rahul Enterprises was present in their premises. It is pertinent to note, in this regard, that Shri Ajay Chaudhary the driver of the said truck in his statement dated 25-7-2007 clearly stated that the bill of M/s. Rahul Enterprises was given to him by evidently clear that there was no representative of M/s. Rahul Enterprises to take delivery of the said goods purportedly sold by the party to them (M/s. Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the party to said M/s. Rahul Enterprises then why the provisional release was sought by the party only and not by M/s. Rahul Enterprises. These circumstances clearly show that the said bill no. 111, dated 25-7-2007 shown to have been issued by M/s. Rahul Enterprises was manipulated document and it was from the factory of the party. It is seen that party produced, at later stage, a bill No. 43 dated 25-7-2007 shown to have been issued by them in favour of M/s. Rahul Enterprises. However, if the said bill was actually issued by them at the time of removal of subject goods from the factory premises, I failed to understand as to what prevented them to produce the same at the time of checking/search in their factory on 25-7-2007. It is important that they were not present in the factory and they arrived in the factory premises subsequently and they could have very well produced the said bill No. 42 dated 25-7-2007 before the visiting officers, had it been actually issued by them. Moreover, Shri Sunil Bansal in his Statement dated 26-10-2007, on being asked specifically, stated that he was not aware as to whether any bill etc. was prepared or not in respect of clearance of subject s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he raw materials purchased as well as finished goods cleared from the factory by them was transported in their abovesaid own vehicles only. Shri Praveen Bansal (Noticee No. 3) has also vied his statement dated 30-10-2007, stated that finished goods removed from their factory were transported in their own above mentioned vehicles. On being specifically asked to clarify as to whether the vehicles bearing registration No. - URJ 1122, UP 14J 7877, HR 38B 9986, UP 14K 1975, UP 13H 2307 owned by the directors of their company whose registration numbers were used for the transportation of goods of other manufacturers also, he stated that these vehicles are mostly used by them for transportation of their own goods to the premises of buyers and normally they do not give their trucks on hiring. In outside parties for hiring for which the hiring charges were recovered by them in cash Shri Shivam Singh the accountant of the party also vide his statement dated 30-10-2007 recorded under Section-14 of Central Excise Act, 1944 before the Superintendent (Anti-evasion), Central Excise, Noida stated that vehicles numbers URJ 1122, UP 14J 7877. HR 38B 9986, UP 14K 1975, UP 13H 2307 are registered in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve said weighment slip, recovered from their factory premises, stated that he was not aware as to where the goods mentioned on said weighment-slips, recovered from their factory premises, pertain to the receipt of raw materials and removal of finished goods from their factory. 68.9 Therefore, I find that allegation of clandestine removal of goods is based on such documentary evidences with carry enough weight to establish the allegation of clandestine removal and furthermore the attending circumstances of the case further strengthen the evidentiary value of the above said documents and it leaves hardly any doubt about the authenticity of these evidences. It is seen that the goods were removed from the factory without manufacturer's invoice and trader's invoice showing sell of subject goods was issued even before weighment of consignment although no representative of Trader was present, in the factory manufacture invoice was not available nor any other record was available but the bill-book of said trader having only third copy of said bill no. 111 dated 25-7-2007 was available. These circumstantial evidences makes it amply clear that the party (Noticee No. 1) was indulged in clan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant-company M/s. Prakash Ispat Udyog (Pvt.) Ltd. was clandestinely removing the finished goods based on recovery of private register and the material collected from Jain Dharamkanta, Sikandarabad. 8. Prima facie we find that the assessment made on the basis of materials collected at the time of inspection as well as through the Jain Dharamkanta on the trucks which were admittedly owned by the directors, was sufficient to record findings with regard to clandestine removal of the finished goods. 9. In Benara Valves Ltd. v. CCE, 2006 (204) E.L.T. 513 (S.C.) = 2008 (12) S.T.R. 104 (S.C.) = (2006) 13 SCC 347 the Supreme Court, referring to Siliguri Municipality v. Amalendu Das, (1984) 2 SCC 436; Samarias Trading Company (P) Ltd. v. S. Samuel, (1984) 4 SCC 666; and CCE v. Dunlop India Ltd., (1984) 1 SCC 260, held that Section 35F, contains two significant provisions, "undue hardship of such person", and "safeguard the interests of Revenue". The two requirements of considerations should guide in exercising the discretion to and penalty levied by the precondition of deposit of the duty and penalty levied by the adjudicating authority. The "undue hardship" has to be established ..... 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