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2018 (10) TMI 693 - AT - Central ExciseSSI Exemption - under reporting and suppressing their production and clearance - fictitious firm - duplicate invoices - it appeared that under the same invoice numbers goods had been sold to two different sets of buyers, the other set of sale transactions being unaccounted - the goods sold also had not been accounted for in their books of accounts. Held that:- In absence of Enquiry /cross-verification from all the customers who had made payments in the four Bank Accounts, it cannot be presumed that payments made by them were in respect of goods manufactured and cleared by the appellant - Without taking into account and giving any finding on the said invoices recovered during investigation and other material, the finding by the Commissioner regarding the non-existence of M/s Cosmoline Electricals, is without any basis and is accordingly set aside. Whether the appellant had necessary infrastructure to manufacture aluminium wires? - Held that:- The appellant had relied upon the statements of Krishna Singh Rathore, Rajesh Batra to show that they did not possess the necessary machinery and infrastructure to manufacture aluminium products. The department has failed to contradict the said stand of the appellant with any positive evidence to show that the appellant indeed had the infrastructure to manufacture aluminium wires - the finding in the impugned order in this regard is untenable. Cross-examination of statement - Held that:- No reliance can also be placed solely on the uncorroborated statement dated 22.05.1998 of Sh. Brajesh Batra, especially in view of his subsequent statement and cross-examination, to corroborate that the payments received in the Bank Accounts were concerning the goods manufactured by the appellant - Further, Sh. Vinod Kumar and Sh. Shrinath in their statements and cross examination have merely stated that the four Bank Accounts were opened at the behest of Sh. Brajesh Batra and were controlled by him, and that they had no knowledge regarding the source and purpose of the said cheques. Nothing incriminating comes from the said statements. The department has failed to prove the charge of clandestine removal with any credible evidence. Neither was there any seizure of unaccounted raw material/ finished goods from the appellant or any of its buyers, nor has the department gathered any other clinching evidence in the form of clandestine purchase of raw material, excess production details, details of unaccounted dispatch by regular transporters, excess power consumption, etc. - duty demand with penalty set aside. Appeal allowed - decided in favor of appellant.
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