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TMI Blog2014 (2) TMI 455X X X X Extracts X X X X X X X X Extracts X X X X ..... ta is the Director of PDIL. 1.2 On receipt of an intelligence about duty evasion by NSLED by adopting various modus operandi, like clearance of goods under parallel invoices without payment of duty or under invoices with fake entries regarding debit of duty in RG-23 A Part-II account or PLA, their factory premises were searched by the jurisdictional central excise officers on 23.1.2002 in course of which certain documents including invoices which appeared to be parallel set of invoices were recovered. During investigation, inquiry was made with Sunil Trivedi, Managing Director of NSLED; Shri V.P. Agrawal and Shri Ashok Kulkarni, Commercial Officer and Excise Manager respectively of NSLED, Shri Jonny John, Excise Officer, PDIL; Shri Vinod Gupta, Managing Director, PDIL and Shri Nathulal Jain, Authorized person of M/s. Nirmala Roadlines, in whose trucks, certain consignments of bags alleged to have been cleared without payment of duty to PDIL, had been transported. Besides this, inquiry was made with the following persons of the customer companies- (i) Shri Vaibhav Dubey, Prop. M/s. Saaj Packers, Pithampur. (ii) Shri Sanjay Sachdeva and Shri Amitabh Agarwal, Authorised Signatoryof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n NSLED under Section 11 AC of Central Excise Act, 1944 read with Rule 25 of the Central Excise Rules, 2002; and (d) penalty under Rule 26 of the Central Excise Rules, 2002 was imposed on other noticees as under:- (i) Shri Sunil Trivedi Rs.1,00,000/- (ii) Shri V.P. Agrawal Rs. 25,000/- Shri Ashok Kulkarni (iii) Shri Vinod Gupta Rs.1,00,000/- While the total duty demand confirmed against NSLED is Rs. 24,29,603/- penalty under section 11AC imposed on NSLED is only Rs. 19,38,281/- (Rs. 24,29,603/- minus Rs. 4,91,322/- paid before adjudication). 1.4 Against the above order of the Commissioner, these five appeals have been filed. In these appeals only the duty demands of :- (i) Rs.6,49,002/- out of the duty demand of Rs.8,21,947/- mentioned in para 45 (i) of the impugned order-in-original and (ii)the duty demand of Rs.12,89,279/- mentioned in para 45(iii) of the impugned order-in-original have been challenged. 2. Heard both the sides. 3. Shri Bipin Garg, Advocate, ld. Counsel for the Appellants, pleaded that out of total duty demand of Rs.19,38,281/- being contested in the appeal filed by NSLED, the duty demand of Rs.12,89,279/- is on the basis of the commercial invoices no.309 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , who had transported the goods, that in this regard Shri Vinod Gupta, Managing Director, PDIL has also given the clarification, but the same has been disregarded, that the goods under the cover of four commercial invoices issued by NSLED to PDIL are the same as the goods cleared for export out of India against four AR4s filed by PDIL and the goods which had been exported out of India under the shipping bills filed by PDIL, that in view of this, the confirmation of the duty demand of Rs.12,89,279/- is without any basis, that as regards the duty demand of Rs.6,49,002/- it is part of the total duty demand of Rs.8,49,641/- based on the allegation of clearing the goods without payment of duty under parallel invoices (Chart I of the Show Cause Notice), that out of this demand, the Commissioner has confirmed the demand of Rs.8,21,949/- out of which the appellant themselves have accepted the non-payment of duty of Rs.1,72,947/- which has already been paid by them, that the appellant (NSLED) are contesting only the duty demand of Rs.6,49,002/- based on the 18 invoices which are alleged by the department to be the parallel invoices, that these invoices are quadruplicate copies of the invoic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orrect invoices the duty had been paid, that in case of quadruplicate invoice No. 726 dt. 17.02.2007, 727 dated 18.02.2002 & 731 dated 20.12.2002, except for invoice number all the particulars date, buyers name and duty debit entry, are correct and the goods have been cleared on payment of duty, that in case of quadruplicate copy of invoice no. 738 dt. 19.12.2002, only date is incorrect and the correct date is 20.12.2002 and in case of quadruplicate invoice no. 740 dt. 19.12.2002, only duty debit entry no. and invoice date is incorrect and correct debit entry no. is 1537 dated 20.12.2002 and correct invoice date is 20.12.2002 and that in view of this, the duty demand of Rs.6,49,002/- based on the above mentioned 18 quadruplicate copies of the alleged parallel invoices is without any basis, that when the duty demand of Rs.19,38,281/- is not sustainable, the penalty of this amount imposed on NSLED under Section 11 AC is not sustainable and for the same reason, penalties of Rs.1 Lakh each imposed on Shri Sunil Trivedi, Managing Director, NSLED and Vinod Gupta, Managing Director of PDIL and penalty of Rs.25,000/- each on Shri V.P. Agarwal and Ankush Khullar would not be sustainable. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a-27 of the impugned order is 339 dated 18.12.2000, the commercial invoice mentioned against S. No. 5 bears the same number and date. Therefore, the invoices at sl.no.3 and 5 in para 27 are the same. As regards the invoice no.339 A dated 19.12.2000 at sl.no.6, on perusal of copy of the same which is placed on record, it is seen that this invoice had been issued to M/s. Jain Packaging and as such, it has nothing to do with the clearances made to PDIL, Indore. Thus, the duty demand of Rs.12,89,279/- is based only on the four commercial invoices issued by NSLED to PDIL invoices no.309 A dated 5.12.2000, 314 A dated 6.12.2000, 339 dated 18.12.200 and 340 dated 19.12.2000. The departments allegation is that the goods sold to PDIL under these four commercial invoices had been cleared without issue of excise invoices and without payment of duty. Though as per records of the transport company, M/s. Nirmala Road Lines and the statements of Shri Nathu Lal of the Transport company and of Shri John Johny of PDIL, the goods covered under these commercial invoices had been received in the premises of PDIL, Indore and had not gone to ICD, Pithampur for export, according to NSLED and PDIL, these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been transported to the ICD, Pithampur or to the premises of PDIL at Indore. In view of this, the Commissioners conclusion that the goods covered under the commercial invoices no.309A dated 5.12.2000, 314 A dated 6.12.2000, 339 dated 18.12.2000 and 340 dated 19.12.2000 had been cleared to PDIL, Indore without issue of excise invoices and without payment duty and are different from the consignments of identical goods in identical quantity, exported by PDIL, Indore from ICD, Pithampur, is not correct. Therefore, the duty demand of Rs.12,89,279/- is not sustainable and the same has to be set aside. 7. The duty demand of Rs.6,49,002/- is based on the 18 quadruplicate copies of the invoice no.723, 724, 725, 726 each dated 17.12.2002, 727 dated 17.12.2002, 731 dated 17.12.2001, 736 dated 18.12.2002, 737 dated 18.2.2002,738 dt. 19.12.2000, 739 dt.19.12.2000, 740 dated 19.12.2002, 749 dt.21.12.2002, 750 dt.21.12.2002, 751 dt.21.12.2002, 752 dt. 21.12.2002, 758 dt.24.12.2002, 774 dt.3.1.2003 and 778 dt.30.12.2002 found in file no.229 seized from the NSLED factory and are alleged to be the parallel invoices, as file no.228, also seized from the factory of NSLED contained triplicate cop ..... X X X X Extracts X X X X X X X X Extracts X X X X
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