TMI Blog2017 (9) TMI 982X X X X Extracts X X X X X X X X Extracts X X X X ..... at respondent had not accounted for fabric processed by it and cleared the same without payment of duty. He has only worked hard with a misplaced sympathy to grant relief to the respondent without testing the intensity and gravity of the seized electronic record as well as statements recorded having bearing to the contents therein. The chain of evidence brought out by investigation were given burial death by ld. Commissioner (Appeals). When clandestine removal was backed by plethora of evidence, gathered by investigation, it was the respondent who was to defend its case leading evidence to discard the same. Burden of proof was not discharged by it to rebut the allegations of Revenue based on evidence nor the respondent came out with clean hands to prove that it was innocent and there was no clandestine removal. Appeal allowed - decided in favor of Revenue. - E/26/09 - A/88706/17/SMB - Dated:- 28-7-2017 - Shri D.N. Panda, Judicial Member Shri M.R. Melvin, Asst, Commr (AR) for appellant None for respondent ORDER None present for the respondent. 2. Investigation made out its case alleging in para 21, 23, 23.1 and 24 of the show cause notice dated 05.04 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same has been received by MF, MI FF, has been confirmed by Shri. G. Salecha and Shri Shantilal Kawad of V-Tex Siddhivinayak . Though, Shri Gautam Salecha of M/s. MF in his statement dated 08.02.2006 states that he does not know anything about the CD, he further states that he financially helped M/s. QP in the payments of their bills debt, etc., which clearly shows that Shri Salecha had financial interest in the functioning of M/s. QP , this view is further strengthened by the information received from the Greater Bombay Co. Bank, Bhuleshwar, Mumbai Branch, wherein the account opening form of M/s QP the Proprietor's name is shown as Shri Amrit Chhajer and his address is the same as that of MF, Kalbadevi and it is also shown as a sister concern of MI. M/s, MI has also loaned large amount of money to M/s QP in the form of deposits and loans to M/s LCPL for starting production, Thus, it becomes clear that M/s. QP, MF M/s. MI were financially closely involved or that M/s. QP was only a creation of M/s. MF/MI and thus Shri Amrit Chhajer was required to report all the transactions to Shri Gautam Salecha and thus this information was being made on the CD and sent to Shri G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stinely removed excisable goods i.e. processed fabrics to MI, MF, FF, V-Tex and Sidhivinayak and evaded payment of Central Excise duty, that firms of Goutam Salecha and Nirmal Transport assisted QP in such clandestine removal, hence Lorry receipts related to these removals were destroyed by Nirmal Transport, that QP was creation of MF and MI and Amrit Chajer, the proprietor of QP has to report about all transactions of QP to Goutam Salecha, that the CD of data / information was sent to Goutam Salecha at Mumbai, that even after best efforts to wipe out evidences about clandestine removal, CD prepared by QP was left through oversight at MI, Mumbai that two separate accounts of processed fabrics were maintained by QP in Computer, one at Desktop and another in Computer found at Games Lx 01-02, that clearances of lesser amount (than actually processed) of processed fabrics were carried out with an intention to pay lesser C.Ex. Duty, that to evade Central Excise duty QP had intentionally manipulated their records to clear goods in a clandestine manner from 01.03.2001 to 30.04.2001, chat CD is an account of fabrics cleared without payment of Central Excise duty by QP that Bank account of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposed on the following persons and concerned as mentioned against their names:- i) Shri Gautam Salecha, Mumbai Rs. 2,00,000/- ii) Siddhivinayak Polycoals Pvt. Ltd., ₹ 1,00,000/- iii) V-Tex Weaving Manufacturing Mills ₹ 1,00,000/- iv) Shri Machhindra Laxman Nakate ₹ 1,00,000/- 5. Learned D.R. submits that Commissioner (Appeals) erred in examining the material facts supported by evidence as well as investigation result. The oral evidence recorded and documentary evidence as well as computer records recovered in the course of search, brought out the scientifically designed modus operandi of the respondent causing evasion. Assessee-respondent failed to prove that it had not followed questionable modus operandi. Evidence gathered in the course of search supported the investigation result. Cross verification of investigation result with evidence gathered form the premises of third party corroborated the malafides of the respondent proving evasion. But learned appellate authority set aside the adjudication for no rhyme or reason. 6. Grounds of appeal of Revenue reveals that when there were sequence of cogent and credible evidence on r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djudication when resulted with huge demand on the basis of cogent and credible evidence gathered by investigation, demonstrating modus operandi of respondent, who concealed unaccounted clearance in a games file in Computer with a copy thereof with Mr. Salecha, ld. Commissioner (Appeals) failed to appreciate credibility, relevancy and admissibility thereof on evidence without evaluation thereof. He has not at all gone through the manner of clearances of the unaccounted goods and the manner how such clearances were funded. There was inextricable link of the evidence to the material facts demonstrating the involvement of the respondent in the clandestine removal. The chain of evidence brought out by investigation were given burial death by ld. Commissioner (Appeals). When clandestine removal was backed by plethora of evidence, gathered by investigation, it was the respondent who was to defend its case leading evidence to discard the same. Burden of proof was not discharged by it to rebut the allegations of Revenue based on evidence nor the respondent came out with clean hands to prove that it was innocent and there was no clandestine removal. 10. In view of the above cr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
