9911796707
TMI Blog2015 (4) TMI 853X X X X Extracts X X X X X X X X Extracts X X X X ..... rh Vs. Vinay Traders arising out of common cause as is in the present batch of appeals directed Registry to keep a copy of the final order passed therein vide No. 58638/13 in records of the present batch of appeals registered as E/2566/2005 to 2580/2005 and E/120/2006. 1.2 Revenue being unsuccessful before learned Commissioner (Appeals) has challenged his decision in these appeals contending that as perverse and ill-founded sanctioning evasion ignoring cogent evidence on record. 1.3 Respondent manufacturer M/s. Surya Cotspin Ltd. evaded excise duty of Rs. 22,61,821/-. It faced duty demand to that extent with penalty of equal amount thereof under Rule 9(2) and 173(2) of Central Excise Rules 1944 read with Section 11AC of the Central Excise Act 1944. Penalty of Rs. 1,00,000/- each was also imposed on Shri Madan Lal, Shri Rajesh Kumar Goel, who were Directors of that Company and similar penalty was imposed on Shri Praveen Kumar, Accountant of the Company. So also the parties (who were delers of the offending goods) as tabulated hereinafter faced penalties of Rs. 10,000/- each being buyers of duty evaded goods being concerned with the same. However, all these respondents were exonera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. Statement recorded from that person revealed that he joined in service of the respondent company as supervisor in May, 1999 and was aware of the issuance of above invoices for clandestine removal of the goods manufactured by the Respondent under the instruction of its Directors. In his letter he also stated that after the goods reached to the buyers, relevant documents, i.e., invoices, GRS and octroi receipts were destroyed by that respondent. He further stated that 114 copies of parallel invoices were xeroxed by him to expose duty evasion made by the respondent company. 3.2 The parallel invoices stated above when cross verified, it was revealed that 21 invoices were instrumental for clearance of unaccounted goods and 93 invoices were parallel which were used to clandestinely clear 220 to 300 kgs. of yarn valued Rs. 2,41,65,681/- to different buyers evading Central Excise Duty of Rs. 22,18,207/-. Investigation also noticed from record of municipality authority of different destinations that clandestinely cleared goods had entered into their jurisdictions. 4.1 Ld. Adjudicating authority in the course of adjudication examined particulars of 114 copies of invoices aforesaid wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id magnitude were levied on the persons concerned and involved therein. 7. Objecting to the adjudication, when respondents went in appeal before ld. Commissioner (Appeals), they were exonerated from charges. He allowed their appeals on the ground that the original invoices were not produced before them for which principles of natural justice being violated, adjudication was not sustainable following the decision in the case of Roman Catholic Mission Vs S [AIR 1966 SC 1457] and also the decision of the Tribunal in the case of TM Industries Vs. CCE [1993 (68) ELT 807 (Tri.)]. 8. Revenue being aggrieved by the order of learned Commissioner (Appeals) came in appeal before the Tribunal in this batch of appeals and Revenue urged that it is not only the parallel invoices contributed to the adjudication, but various factors like recording of higher production quantity subsequent to visit by investigation proving suppression of production , report of Govt. examiner showing signature of directors of respondent company on the parallel invoices, seizure of goods in the course of search by sales tax authority, octori record showing movement of clandestinely removed goods, seizure of two blank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es corroborated by entries in Octroi record of Municipality Authority remained uncontroverted in absence of any cogent evidence led by Respondents. Revenue discharged its burden of proof. Respondent failed to demolish the adjudication based on multiple factors including the statements recorded under Section 14 of Central Excise Act, 1944. Municipality record being public record proved the questionable modus operandi of the respondent manufacturer showing movement of clandestinely removed goods. Recording of higher quantity of production after visit by investigation self speak suppression of production prior to search. Suppressed production cleared clandestinely was proved from blank and parallel invoices found by investigation. The dealers tabulated herein before having been found to be buyers of such goods, they supported case of Revenue. Plea of unrealiability of photocopies failed to sustain when signature of director of respondent company therein was found to be same as reported by Govt. document examiner. Blank copies of invoices found from invoice book show ill intention of respondent manufacturer in absence of any explanation therefor. Goods in the factory of respondent manu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a cheating intended to get an advantage. (See S.P. Changalvaraya Naidu v. Jagannath [1994 (1) SCC 1]. 14. In a leading English case i.e. Derry and Ors. v. Peek (1886-90) All ER 1 what constitutes fraud was described thus: (All ER p. 22 B-C) fraudis proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false. This aspect of the matter has been considered by Apex Court in Roshan Deen v. PreetiLal [2002 (1) SCC 100] Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education [2003 (8) SCC 311], Ram Chandra Singhs case (supra) and Ashok Leyland Ltd. v. State of T.N. and Another [2004 (3) SCC 1]. Suppression of a material document would also amount to a fraud on the court (see Gowrishankar v. Joshi Amha Shankar Family Trust, [1996 (3) SCC 310] and S.P. Chengalvaraya Naidus case AIR-1994 SC-853. No judgment of a Court can be allowed to stand if it has been obtained by fraud. Fraud unravels everything and fraud vitiates all transactions known to the law of however high a degree of solemnity. 15. Evidence gathered by Revenue unambiguously proved that the dea ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
