TMI Blog2014 (2) TMI 455X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, the duty demand of Rs.12,89,279/- is not sustainable and the same has to be set aside. Ongoing through the 18 disputed quadruplicate copies of invoices, it is seen that out of 18 invoices, 11 invoices are defective inasmuch as the details in the upper portion rate per unit, quantity supplied and value does not match with the value on which excise duty has been calculated, as indicated in the lower portion of invoices. Therefore the 18 quadruplicate copies of invoices recovered from file no. 229 seized from the factory of NSLED cannot be treated as parallel invoices representing clearances made without payment of duty and hence the duty demand of Rs.6,49,002/- based on the same is not sustainable. Even of the setting aside the duty demand of Rs.19,38,281/- , the duty demand of Rs. 4,91,32/- would still remain, the penalty on him is reduced to Rs.20,000 - there is no evidence on record to prove that they had dealt with any goods cleared without payment of duty, in the manner specified in Rule 26 of the Central Excise Rules, 2002, penalty on them is not sustainable and the same is set aside - Decided in favour of assessee. - Appeals Nos. E/550,551, 552 & 553 of 2006 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stomer of NSLED did not turn up for inquiry before the investigating officers. Based on the scrutiny of the documents and statements of the above persons, a show cause notice dated 24.06.2004 was issued to NSLED, its Managing Director and two employees mentioned above and Shri Vinod Gupta, Managing Director, PDIL for --- (a) Confirming the duty demand of Rs.63,72,323/- against NSLED under proviso to Section 11A (1) of Central Excise Act, 1944 along with interest on it under Section 11AB ibid; (b) Imposition of penalty on NSLED under Section 11 AC and Rule 25 of the Central Excise Rules, 2002; and (c) Imposition of penalty under Rule 26 of the Central Excise Rules, 2002 on Shri Sunil Trivedi, Shri V.P. Agrawal and Shri Ashok Kulkarni of NSLED and Shri Vinod Gupta of PDIL. 1.2.1 The allegation-wise break-up of the duty demand of Rs.63,72,323/- is as under:- (a) Goods removed without payment of duty under parallel set of invoices (Chart-I of SCN) Rs. 8,42,641/- (b) Goods removed without payment of duty under invoices bearing fake/bogus debit entries (Chart III IV of SCN) Rs.19,38,934 Rs. 2,98,802/- (c) Removal of goods without payment of duty under invoices showing d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of clearing the goods without payment of duty under parallel set of invoices, that as regards the allegation of the duty evasion of Rs.12,89,279/- (Chart-VI of the show cause notice) based on the commercial invoices issued to PDIL, out of these invoices, invoice no.339A dated 19.12.2000 does not pertain to PDIL but pertains to M/s. Jain Packaging and the invoice no. 339 dated 18.12.2000 has been taken into account twice and thus, this duty demand is based only on the four commercial invoices no.309A dated 5.12.2000, 314A dated 6.12.2000, 339 dated 18.12.2000 and 340 dated 19.12.2000, that the Departments allegation is that under these commercial invoices, the goods PP Jumbo bags had been supplied to PDIL without payment of duty and without issue of central excise invoices, that this allegation is totally incorrect as the goods mentioned in these commercial invoices had been cleared against AR-4s filed by PDIL as Merchant Exporter for the export of these consignments and the same cleared under Central Excise Invoices had been transported directly from the factory of NSLED to ICD, Pithampur for export out of India, that the fact that the goods covered under these four AR4s hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same factory, bearing the same numbers but issued to different consignees with different quantity and value of the goods, the department has alleged that the 18 quadruplicate copies of the invoices are parallel invoices under which the goods had been cleared without payment of duty, that this allegation is not correct, as during December, 2002, due to error in computer programming, the computer system of NSLED had started generating invoice numbers which had earlier been generated, that the goods covered under the 18 invoices have actually been cleared on payment of duty though under the invoices bearing the different numbers but to the same parties as those mentioned in the quadruplicate invoices, that the clearance of the goods mentioned in the 18 quadruplicate copies of invoices are reflected in the RG-I Register, that the fact of the computer generating defective invoices is clear from the fact that in 11 quadruplicate invoices, the value of the goods based on quantity supplied and rate per unit shown in the upper portion of the invoices is different from the value of the goods and the central excise duty and sales tax thereon mentioned in the lower portion of the invoices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs.12,89,279/- against NSLED based on the commercial invoices issued by them to PDIL, he pleaded that in respect of the commercial invoices mentioned in para-27 of the impugned order-in-original to PDIL, there are no central excise invoices issued, and these clearances have been made to PDIL without payment of duty, that receipt of the goods covered under these commercial invoices in the premises of PDIL is confirmed by Shir Nathu Lal of Shri Nirmala Road Lines, the transporter and this fact is also confirmed by Shri John Johny, authorized signatory of PDIL and that the goods received in the factory of PDIL under the commercial invoices mentioned in para-27 of the impugned order are different from the goods which had been cleared for export against AR4s and had been exported from the ICD, Pithampur. He also pointed out that while the commercial invoices have been issued on 5.12.2000, 6.12.2000, 18.12.2000 and 19.12.2000, the exports have been made after about 10 days and that the vehicle numbers mentioned in the commercial invoices are also different from the vehicle numbers mentioned in the excise invoices. As regards the duty demand of Rs.6,49,002/- based on the 18 quadruplicate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leared for export under excise invoices no. 227 dt.5.12.2000, 230 dt. 6.12.2000, 239 18.12.2000 and 240 dated 19.12.2000 for export out of India and had, indeed, been exported out of India. 6.1 On comparing the particulars of the goods sold to PDIL under commercial invoice no.309 A dated 5.12.2000 with the particulars of the goods mentioned in the corresponding excise invoice no.227 dated 5.12.2000 issued by NSLED to PDIL, it is seen that the particulars are the same. These particulars tally with the description of the goods mentioned in the AR4 and also the description mentioned in the shipping bill. The AR4 had been filed by PDIL against which the goods had been cleared for export. Similarly, the particulars of the goods covered under the commercial invoice no.314 A dated 6.12.2000, 339 dated 18.12.2000 and 340 dated 19.12.2000 are identical with the particulars of the goods mentioned under excise invoice no.230 dated 6.12.2000, 239 dated 18.12.2000 and 240 dated 19.12.200 respectively and also the particulars mentioned in the corresponding AR-4s and the shipping bills. All the shipping bills have been filed by PDIL as exporter and mention NSLED as the manufacturer. Not only th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nerated had got generated due to fault in the computer programming and the goods covered under these invoices had been cleared on payment of duty, though under invoices bearing different invoice nos. They have also given the details of the correct invoice nos. under which the goods have been cleared and on comparing these details with the details in the quadruplicate copies of the 16 invoices it is seen that except for the invoice nos., the basic details specially the PLA/RG-23 A Pt-II debit entry nos. for payment of duty and the consignees names are matching. It is also seen that in case of quadruplicate invoice no.726 dt. 17.12.2002, 727 dt.18.12.2002 and 731 dt. 20.12.2002 except for the invoice number all other particulars are the same as those in the invoice no.718 dt. 17.12.2002, 721 dated 17.12.2002 and 719 dt. 17.12.2002 respectively. In case of quadruplicate invoice no. 738 dt.19.12.2000, only date is incorrect and correct date is 20.12.2002 and in case of quadruplicate copy of invoice no.740 dt.19.12.2002 except for duty debit entry number, all other particulars are correct and the correct duty debit no. is 1537 dt. 20.12.2002. It is not disputed that the clearance of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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