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2017 (4) TMI 1305 - AT - Central ExciseClandestine removal - underinvoicing - In the absence of machinery provisions for proceeding against a dead person, duty and other sums do not become “payable” to attract recovery provisions under Section 11 of the Central Excise Act, 1944. Held that: - the allegation of underinvoicing is well established on the basis of the investigation done extensively by Revenue. The seized records indicate both the recovery of “billed amounts” as well as additional amounts recovered as “OA” by cash. The entries found in the seized records have been corroborated by key employees of NPB, who were holding responsible management positions. Sh. Maklai, P.A. holder is one of them. The Prop. in his statement clearly stated that the factory was managed by Sh. Maklai, consequently, admission by the P.A. holder assumes significance. The statement of other employees of NPB not only fully corroborates and supports the documents recovered, but also clearly brings out the fact that NPB was recovering amounts in addition to invoiced prices which were not part of the assessable value of the goods for purposes of charging excise duty. The accessed private records were in fact maintained by the staff of the office and contained information corelatable to the invoices which are statutory records. Consequently, these records cannot be ignored and can be made basis for confirming the allegation of undervaluation. It is on record that the department had made a series of undervaluation cases against many plywood factories in and around Karnataka, Kerala and Tamil Nadu. The modus operandi adopted was more or less identical to that adopted by the appellants in the present case. Since the present investigation has been undertaken by Revenue subsequent to the earlier cases, it is very much likely that general plywood/trade and all the dealers were clearly alerted and have given statements to the Revenue to the extent that no additional consideration has been paid. In any case, we note that the retraction of the two statements by the dealers at the time of cross-examination was done well over two years after the recording of such statements and can clearly be considered as an afterthought. The adjudicating authority on the above basis has determined that the invoice value will need to be added with the additional consideration received in cash and which is evidenced by the documentary and oral evidence recovered and produced by the Revenue. In fact, he has restricted the demand only to that evidences. This is a case in which Revenue has succeeded in unearthing voluminous documentary as well as oral evidence which unambiguously supports the allegation of underinvoicing. The investigation done by the Revenue has established the allegation of underinvoicing. Consequently, the demand of differential duty as confirmed by the ld. Commissioner in the impugned order is upheld - Appeal allowed by way of remand.
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