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2015 (7) TMI 182 - AT - Central ExciseEvasion of duty - Clandestine removal of goods - No duty paying documents could be produced - Held that:- Allegation against the appellant company, MAPL is that during the period from Jan. 2003 to September, 2003 and from December, 2000to December, 2002, it had indulged in large scale of evasion of duty by receiving huge quantity of unaccounted scrap from certain suppliers of Mumbai, which was used in unaccounted manufacture of Aluminium Sections/Profiles, which were cleared to the various parties including M/s. NE, Mumbai and M/s.TF, Mumbai without payment of duty - it has been alleged that unaccounted Aluminium scrap was being received by MAPL, Pithampur from Mumbai and though the scrap was being transported by the Capital Road Lines and Parcel Services showing M/s.Mallnath Aluminium, New Delhi as the consignee, the goods covered under the LRs were being unloaded at the factory premises of Pithampur and it has been alleged that it is this unaccounted scrap which was used for unaccounted manufacture of Aluminium Profiles/Sections, which has been cleared clandestinely to various parities including Nagina Enterprises and Tarachand Fauzmal, Mumbai. Documents recovered from the residential premises of Shri Mahendra Sethia show the sales to a number of other parties, i.e. other than M/s. Nagina Enterprises, M/s. Tarachand Fouzmal, M/s. G. Gajendra & Company, M/s. Ambika Aluminium Profiles & M/s. Deepak Metals, which are not corroborated by any documents recovered from the premises of the transporter, Capital Road Lines & Parcel Services. These parties are from places other than Mumbai. No inquiry has been conducted with these parties. In our view, in respect of the such entries in the private records maintained by Shri Mahendra Sethia which are not corroborated by any other evidence, in form of transporter s documents or statement of the customers or goods manufactured by MAPL having been recovered from their premises, the duty demand would not be sustainable. According to the appellant duty demand on the quantity of 6,99,851 kgs. of Aluminium Profiles/sections mentioned in Annexure-1 for the period Jan. 2003 to September, 2003 and duty demand on the quantity of 85520 kgs. mentioned in Annexure-1A for the period December, 2000 to October, 2001 is in respect of alleged clearance of Aluminium Profiles and Sections as per the private records maintained by Shri Mahendra Sethai which are not corroborated by any documents of the transporters, and in respect of which absolutely, no inquiry has been conducted. In our view, the duty demand on this quantity would not be sustainable. Duty demand is upheld only in respect of the consignments detailed in Annexure 32 and 33 to the show cause notice which are consigned to M/s. Nagina Enterprises and the same has to be quantified by the Commissioner. Besides this the duty has to be demanded from MAPL in respect of 352 bundles of Aluminium profiles seized from the godown of M/s.NE, Mumbai. The rest of the duty demand has to be set aside. The penalty imposable on the appellant company, MAPL under Section 11 AC and penalty under Rule 26 of the Central Excise Rules, 2002 imposable on Shri Mahendra Sethia, Shri Manish Raj Jain and M/s.Nagina Enterprises would be in proportion to the duty demand which is confirmed against MAPL. As regards penalty on M/s. MM, M/s.FAPL and M/s. PTL since there is no allegation that they had received non-duty paid Aluminium Sections/Profiles cleared from MAPL and their names do not figure in Annexure 32 and 33 of the show cause notice and as such, they have not received non-duty paid goods from MAPL, penalty on them is not sustainable and the same is set aside. - As regards the confiscation of the goods seized from the godown of Nagina Enterprises, Mumbai, the same is upheld - Matter remanded back - Decided in favour of assessee.
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