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TMI Blog2013 (3) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... co-appellants namely M/s. Shree Venkatesh Metal Corporation, Mrs. Shantidevi Taparia, Mrs. Pushpa Taparia, Mr. Pramod Taparia, Mr. Hariprasad Taparia, M/s. Pooja Enterprises and M/s. Alcost India Corporation. 2. This is the second round of litigation. In the earlier round of litigation, this Tribunal vide Order No. A/114 to 119/1993 dated 18-5-1993 was pleased to set aside the impugned order and directed the adjudicating authority to decide the issue afresh in accordance with principles of natural justice. 3. In pursuant to the direction of this Tribunal dated 18-5-1993, the impugned order was passed on 25-2-2000. 4. The brief facts of case in details are that M/s. WIMI was engaged in the manufacture of Overhead Power Transmission Conductors which are exclusively sold to various Electricity Boards such as Maharashtra State Electricity Board, Rajasthan State Electricity Boards, Gujarat State Electricity Board, Punjab State Electricity Board, etc. and bare wire of various gauges. These power transmission conductors are only used for overhead power transmission and only by State Electricity Boards which are Public Sector Undertaking (PSU). The appellant (a small scal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minum wires and cleared the same to WIMI on payment of duty. The appellant thereafter availed the credit of duty paid on wires and use the same in manufacturing Conductors which were duly recorded in the RG1 register. The conductors were supplied to the Appellant's customers viz. the electricity Boards on payment of duty under the Excise Gate pass and the said clearance were recorded in the RG 1 & RG 23 Register. 6. The appellant was also engaged in activity of trading of the raw materials such as Aluminum Ingots, Aluminum Wire Rods to the following parties for consideration : - Mohan Sons Electric Bhandar; - Moon & Sons Electric Bhandar; - Universal Production and Sales Electric Bhandar; - Paramount & Sons Electric Bhandar; - Parmanand & Sons Electric Bhandar; and - Raj Electricals, Allahabad 7. A show-cause notice was issued to the appellants on 26-9-1988 alleging clandestine removal of their finished goods and ava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1998 to proceed with the matter impugned before us. As the Advocate of the appellant was not available, therefore vide letter dated 24-8-1998 requested the department to grant the copies of relied upon documents (in the absence of the said documents, the appellants were not able to reply the show-cause notice). Thereafter vide letter dated 15/19-1-1999, the department informed the Advocate of the appellants that there was no direction from the Tribunal in remand order to furnish copies of the relied upon documents and asked the appellants to file the reply without further correspondence and directed to appear for hearing on 29-1-1999. On 19-1-1999, it was informed to the department that the Tribunal has directed to pass fresh orders after following the principles of natural justice which included furnishing of documents relied upon in show cause notice and without granting copies of the said relied upon documents again hearing was fixed on 15-2-1999. Finally on 17-2-2000, the impugned order was passed. Against the said order, the appellants are before us. 9. Shri J.H. Motwani, learned Advocate for the appellants appeared before us and submitted that in this case the demand ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheque, therefore, allegation of clandestine removal is not sustainable at all. No investigation has been made from the State Electricity Boards about the receipt of the goods and non-receipt of the goods against the invoices. Therefore, the demands on account of clandestine removal are not sustainable. 9.3 He further submitted that it is also alleged that M/s. WIMI has not received any inputs from M/s. Pooja and M/s. Alcost and only received duty paying documents for passing the credit without actual clearance of the inputs. With regard to this allegation, he submitted that on one hand, the department is alleging that the inputs were never received by M/s. WIMI and on the other hand, it is alleged that finished goods were cleared clandestinely. It is submitted that the no investigation/verification has been conducted to ascertain the fact of receiving the inputs. He further submitted that the charge of clandestine removal is a serious charge and the same requires to be proved beyond doubt. In the present case, the buyers of the appellant M/s. WIMI are PSUs, therefore, onus to prove the clandestine removal is on the department. He relied on the decision of the Tribunal in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot been relied in the show-cause notice, cannot be relied upon at this stage. In this regard, he relied on the decision in the case of CCE v. Gas Authority of India Ltd. - 2008 (232) E.L.T. 7 (S.C.) and CCE v. Ballarpur Industries Ltd. - 2007 (215) E.L.T. 489 (S.C.). 9.9 It is further submitted that the clearances made by M/s. WIMI to five firms, which are fictitious and having the abbreviation of State Electricity Boards is not correct as the goods cleared to them were assessed by Sales Tax authorities and found to be genuine and firms were not fictitious. It is also submitted that no investigation was carried out by the department with the said five firms or from the Banks where the cheques issued by the said five firms were deposited. 9.10 He also submitted that M/s. WIMI has rightly claimed the SSI exemption and no excise duty was charged from State Electricity Boards. 9.11 With regards to penalties, he submitted that in earlier round of litigation, no penalty was imposed on M/s. Venkatesh Metal Corporation and Mrs. Shanti Devi Taparia and penalties on the other co-appellants were only Rs. 1 lakh each. In remand proceedings, he imposed the penalty of Rs. 20 la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supply of goods to various State Electricity Boards to recover the incidence of Central Excise duty higher than the rate they were liable to pay as an SSI assessee. 10.2 He further submitted that the demands have raised on the various evidences such as daily production records and statement of Quality Control Supervisor, parallel set of documents, payment receipt from State Electricity Boards were indicated in the ledger record as if received from similarly abbreviated named fictitious firms and Gate passes issued in respect of supply to the State Electricity Boards, statements of Shri B.V. Shimpi, Shri H.B. Thakur and Shri S.S. Jadhav. Therefore, the demands against the appellants are correctly confirmed and penalties have rightly imposed on them. 11. Heard both sides in detail on 25-8-2011 and the matter was adjourned on the request of the learned A.R. to trace out the relied upon documents. The matter was finally heard on 19-1-2012, wherein it was admitted by the learned A.R. before this Tribunal that relied upon documents are not traceable with the department. 12. In the earlier round of litigation, the matter was remanded back to the adjudicating authority to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake the photocopies and inspect the documents, the officers deputed were unable to trace all the records like Books of Accounts, Central Excise Registers, Sale and Purchase Books, therefore, it is not possible to file a reply. Thereafter, the appellants visited several times to the office of the adjudicating authority but were unable to obtain copies of various documents such as RG-23 Part-I & part-II Register, PLA. Thereafter the appellants were granted the hearing on 21-7-1999 and 23-9-1999. The appellants through their Advocate's letter dated 17-7-1999 and 23-8-1999 informed the adjudicating authority that all the documents have not been furnished to them. Again the appellant informed to the adjudicating authority vide letter dated 4-9-1999 that copies of the RG-23 Registers and PLA Books have not been received to them till date and the same are not traceable. On 17-9-1999, the appellant informed that out of nearly 1000 books seized by the department, only few books have been furnished to them and copies of the remaining books were not traceable. Thereafter, vide letter dated 21-9-1999, the appellants informed that out of 942 documents seized and relied upon in the show-cause no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iously, in error in refusing to direct the respondents to hand over the copies of the test reports to the petitioners which has, necessarily, prejudiced the defence of the petitioners." In the case of Poonam Tex Chem v. CCE, Vapi reported in 2010 (251) E.L.T. 405 (Tri.-Ahmd.), this Tribunal has held that unless the documents which are relied upon and form basis for calculation of duty are provided to the appellants, it cannot be said that principles of natural justice have been observed. In the case of M/s. Suryanarayan Silk Mills v. CCE, Surat-I reported in 2008 (232) E.L.T. 444 (Tri.-Ahmd.) = 2010 (18) S.T.R. 359 (Tribunal), this Tribunal has observed that allegations were against the assessee and it was for the assessee to decide whether delivery challans relied upon by Revenue in support of their case are required by him or not. The observations of the appellate authority that he could not understand the reasons as to why the reply could not be filed in absence of challans, is not appreciated inasmuch as it is assessee's prerogative to examine and look into the evidences in case of relied upon documents. Whether any willful purpose was to be served or not, is not an arena to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed law that charge of clandestine removal being a serious charge, required to be proved beyond doubt on the basis of affirmative evidences." In this case the charge of clandestine removal has been made but there are no corroborative evidences to prove the charge. Therefore, the allegation of clandestine removal is not sustainable in the facts of this case. 18. We further find that in the case of M/s. Pooja Enterprises vide Order Nos. A/1694 to 1701/C-IV/SMB/WZB/2006 dated 10-10-2006 [2007 (207) E.L.T. 264 (Tri.)] wherein it was alleged that M/s. Pooja Enterprises has claimed to have manufactured, and cleared Aluminium Wires from their factory by filing false and improper classification list and fraudulently claimed and availed of the concessional rates of duty provided under the Notification No. 175/86, claiming themselves as an SSI unit with the deliberate and fraudulent intention to evade payment of Central Excise duty by issuing fake invoices in lieu of proper price list and by purportedly determining and paying Central Excise duty on the said goods without having manufacture and cleared by them. It was also alleged that the appellant had paid Central Excise duty leviable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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