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2015 (4) TMI 738 - CESTAT NEW DELHI

2015 (4) TMI 738 - CESTAT NEW DELHI - 2016 (334) E.L.T. 110 (Tri. - Del.) - CENVAT Credit - Shortage of goods found - Documents seized from assessee's premises - Held that:- Under section 36 A of the Central Excise Act, 1944 where any document is produced by any person or has been seized from the custody or control of any person, under this act or under any other law and such document is tendered by the prosecution in evidence against him or against him and any other person who is jointly prosec .....

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lant pleads that the entries in these production sheets do not pertain to the production of the factory on the respective dates, the burden of proving this would be on them for which no evidence has been produced. Though, the appellant plead that Sh. AK Maheshwari had certain grievances against the appellant company and the production sheets had been prepared on his instruction, this plea would not be valid in respect of the production sheets pertaining to June 2003, when Sh. AK Maheshwari was n .....

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nefit in this regard has to be given to the appellant - Impugned order is set aside - Matter remanded back - Decided in favour of assessee. - Excise Appeal No. E/2770-2771/2007 –Ex [DB] - Final Order No. 51022-51023 /2015-Ex(Br) - Dated:- 25-3-2015 - Hon'ble Mr. Rakesh Kumar, Member (Technical) And Hon'ble Mr. S. K. Mohanty, Member (Judicial),JJ. For the Appellants : Sh. Rupesh Kumar, Advocate For the Respondent : Mr. R. K. Grover, DR ORDER Per Rakesh Kumar (for the Bench): M/s RHL Profi .....

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nd at that time the stock taking of the raw material as well as finished goods was also conducted. While, in respect of the stock of raw material, shortage of 112.375 MT was found, in the stock of finished goods, shortage of 76.954 MT was found. The total duty/ cenvat credit involved on the raw material found short and finished goods found short was 2,47,446/-. For demand of duty on the cenvat credit availed raw material and finished goods found short, a separate show cause notice was issued whi .....

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ared to be containing details regarding production of the appellant company for January, 2002 were recovered and the same were placed under seizure. 1.1 At that time the residential premises of Sh. KK Somani, Managing Director and his father, Sh. RK Somani was also searched and from their common residence cash of ₹ 8,30,000/- was placed under seizure. A separate Show Cause notice has been issued for confiscation of the cash along with the Show Cause Notice for duty/ cenvat credit demand on .....

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. Subsequently, the inquiry was also conducted with Sk. KK Somani and his statement was recorded. After inquiry with SH. AK Maheshwari, Sh. KK Somani and other employees of the appellant company, the investigating officers were of the view that the 40 sheets seized from the factory premises of the appellant company and 19 sheets seized from the residential premises of Sh. AK Maheshwari contained date wise details of production of bars and rods during June 2002 and January 2003 respectively. The .....

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during months of January 2002 and June 2003 has not been accounted for and had been cleared clandestinely, the duty involved on which is ₹ 61,86,420/-. After issue of the SCN, the matter was adjudicated by the Commissioner vide Order-in-original dated 25.05.2007, by which the Commissioner confirmed the duty demand of ₹ 50,05,014/- against the appellant company along with interest on it under section 11AB and while imposed penalty of equal amount on the appellant company under sectio .....

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rder of the Commissioner, these appeals have been filed. 2. Heard both the sides. 3. Sh. Rupesh Kumar, Ld. Counsel, appearing for the appellant, pleaded that the basis of the duty demand are 40 sheets recovered from the factory premises and 19 sheets recovered from the residential premises of Sh. AK Maheshwari Ex. GM of the appellant company, coupled with the statement of Sh. AK Maheshwari and other persons, that other than this, there is absolutely no evidence in support of the allegation of un .....

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pared by them in their own hand writing on the instructions of Sh. AK Maheshwari, that Sh. AK Maheshwari had a number of disputes with the appellant company, as a result of which he had stopped coming to the factory since October, 2002 and in May 2003 he had submitted his resignation which had been accepted, that he filed cases against the appellant company before the Labour Commissioner, Special CJM, Kanpur, Labour Court, Lucknow, Civil Judge (SD) Kanpur, etc., that the so called production she .....

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d when the officers were leaving the factory, one of them received a call from Sh. AK Maheshwari and only on the receipt of the call, that the officers entered into the factory again and at that stage only, the file containing 40 sheets was recovered, that this shows that the search had been conducted at the instance of Sh. AK Maheshwari and it is Sh. AK Maheshwari who has got these documents fabricated and had placed the same at a place which was known to him only, that for this reason only the .....

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t the instance of Sh. Maheshwari and the same do not represent the actual production of the factory during January 2002 and June 2003, that though the Department also relies upon the alleged shortage in the stock of cenvat credit availed raw material and finished goods, and though the Commissioner (Appeals) has upheld the duty demand based on the alleged shortage and also confiscation of the cash, on appeal being filed to Tribunal against the order of the Commissioner (Appeals), the Commissioner .....

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nal s judgement in the case of TM Industries vs CCE reported in 1993 (68) ELT 807 Trib., that there is also discrepancy in the production sheets inasmuch as in a number of production sheets, the production has been recorded for overlapping time period, that for example in the production sheets of 16.03.2003, the starting time of the factory in one sheet is shown as 12 O clock in the midnight to 8 AM in the morning, in other sheet, the time is shown from 8AM to 5 PM in the evening and in the thir .....

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Grover, the Ld DR, defended the impugned order by reiterating the findings of the Commissioner and emphasized that the production sheets bear the signatures of Sh. Sunil Mishra and Sh. Gopal Gupta who were the supervisors in the production department, that the allegation that the production sheets had been fabricated by these two persons on the instructions of Sh. AK Maheshwari who had grievance against the appellant company is difficult to believe, as Sh. AK Maheshwari was coming to the factory .....

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of Sh. AK Maheshwari, that Sh. Sunil Mishra and Sh. Gopal Gupta have not retracted their statements, that Sh. SS Trivedi, in his statement, has accepted the entries in these sheets as the production records and this statement of Sh. SS Trivedi has also not been retracted, that the provisions of section 36A of the Central Excise Act, 1944 would be applicable to the production sheets recovered from the factory premises and, therefore, there would be a presumption about the truth of their contents .....

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M of the Appellant Company and the Department s allegation is that these production sheets contained date wise details regarding production of their finished goods during January 2002 and June 2003. Though, the Department also relies upon the shortage in the stock of finished goods as well as cenvat credit availed raw material found at the time of search of the factory premises on 19.03.2004 and also recovery of Cash of ₹ 8,30,000/- from the residential premises of Sh. KK Somani, it is see .....

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at Sh. AK Maheshwari who was General Manager in the appellant company till May 2003 and in fact had stopped coming to the factory since, October 2002 had some disputes with the appellant company. The appellant s plea is that these production sheets had been got fabricated by Sh. AK Maheshwari through Sh. Sunil Mishra and Sh. Gopal Gupta and that he had certain grievances against the appellant company and also there are certain glaring mistakes in these sheets, inasmuch as, in a number of sheets, .....

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no doubt can be raised about their genuineness, as during that period Sh. Sunil Mishra and Sh. Gopal Gupta were under no obligation to obey the direction of Sh. AK Maheswari. 7. Under section 36 A of the Central Excise Act, 1944 where any document is produced by any person or has been seized from the custody or control of any person, under this act or under any other law and such document is tendered by the prosecution in evidence against him or against him and any other person who is jointly p .....

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