9911796707
TMI Blog2015 (2) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... om MS Scrap and Sponge Iron etc. and the MS Ingots are used for manufacture of MS Bars and MS Girder. The Appellant Company also purchases MS Ingots from other ingots manufacturers for use in the manufacture of MS Bars and MS Girder. The Appellant Company was availing Cenvat credit in respect of excise duty paid on the inputs and capital goods being used in or in relation to manufacture of their final products. 1.2 On receipt of an intelligence that the Appellant Company is indulging in large scale duty evasion by adopting various modus operandi, the officers of Central Excise Commissionerate, Meerut I conducted a preventive operation on 04/12/08 against the Appellant Company in course of which the premises of the Appellant Companys factory and its office premises and also the premises of a Dhaba located just outside the gate adjoining the factory were searched. The stock taking of the Cenvat credit availed raw material as well as finished product was done. While no shortage of cenvated inputs was found, there was shortage of MS Ingots 12,096.565 MT involving duty of Rs. 40,19,741/- vis-`-vis the balance recorded in the RG-1 register. The stock taking had been done in the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on inquiry admitted to have written these documents. Inquiry was made with 30 customers and all of them admitted to have received the goods covered under those documents without any Central Excise invoice. Inquiry was also made with the 28 transporters and all of them confirmed having transported the goods mentioned in those despatch slips. The bulk of the duty demand, that is, the duty demand other than the duty demand of Rs. 40,19,741/- on account of shortage of the finished goods (MS Ingots) and the duty demand of Rs. 16.06 lakhs based on the parallel invoices, is based on these above-mentioned despatch slips recovered from Maheteshwari Dhaba. It is on this basis of the above evidence that the Commissioner vide order-in-original dated 29/11/13 has confirmed total duty demand of Rs. 19,04,92,241/- against the Appellant Company under proviso to Section 11A (1) of Central Excise Act, 1944 in respect of clandestine clearances of MS Ingots, MS Bars and MS Girder during 2007-2008 and 2008-2009 alongwith interest thereon under Section 11AB of Central Excise Act, 1944 and has imposed equal amount of penalty on the appellant company under Section 11AC. The Commissioner by this order has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... videntionary value, that other than the entries in the loose papers recovered from the Dhaba, there is no evidence of unaccounted manufacture of the goods by the appellant company, which are alleged to have been cleared by them in a clandestine manner, that in any case, the Appellant Company has been incurring huge losses during the last 2 years and has already made an application on 17/7/13 before the BIFR for declaring it a sick unit and finalising a rehabilitation package, that the Appellant Company has suffered losses of Rs. 18.42 crores during 2012-2013 and the losses of Rs. 15.30 crores during 2013-2014 and since there are huge dues being recovered by the appellants bankers and other agencies, the appellant are not in a position to comply with the provisions of Section 35F that there is absolutely no justification for imposition of penalty under Rule 26 of the Central Excise Rules, 2002 and that in view of the above submissions, the requirement of pre-deposit of duty demand, interest and penalty by the Appellant Company and the requirement of pre-deposit of penalty by the other noticees Managing Director and employees of the appellant company, may be waived for hearing of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds were despatched, that inquiry was made at random with 30 customers and all of them confirmed having received the goods covered by the despatch slips without any Central Excise invoices and similarly the inquiry with 28 transporters truck owners has also confirmed that the goods mentioned in the despatch slips were transported in the truck numbers mentioned in the slips, that this evidence confirms the genuineness of the despatch slips recovered from Maheteshwari Dhaba and also the fact that the same pertain to the Appellant Company, that in this background, not permitting the cross examination of the customers or the transporters is not fatal to the adjudication proceedings, that since the Appellant Company has indulge in large scale evasion of duty, no credence can be attached to is books of accounts and hence the quantum of losses which are claimed to have been suffered by during 2012-2013 and 2013-2014 is not genuine, that though the appellant have filed an application before BIFR for being declared as a sick unit, no order has been passed by the BIFR so far, and that Shri Zakir Ali Rana, Managing Director and other noticees, who are employees of the Appellant Company were ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Appellant Company. Moreover, we find that Shri Kishan Sharma, the owner of Maheteshwari Dhaba has stated that the 11 files containing the despatch slips, the attendance register and weighment register pertain to the Appellant Company, and this statement of Shri Kishan Sharma is corroborated by the statements of Shri Bilal Ahmed, Dispatcher, Shri Dinesh Gupta, the Authorised Signatory, Shri Sarfraz Ali, Excise Authorised Signatory and also the statement of Shri Neeraj Garg, their Sales Manager. Each despatch slip contains the details of the despatches made to various customers like the date of despatch, the truck number in which the goods were transported, description and quantity of the goods, total weight etc. and on inquiry with 30 customers selected at random, they have confirmed having received the goods under the despatch slips, in question, and similarly on inquiry with 28 transporters selected at random all of them confirmed that having transported the goods mentioned in the despatch slips. Though the appellant plead that cross-examination all the dealers and transporters were not allowed, in our prima facie view, since this is not the only evidence to link the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
