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2015 (4) TMI 853

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..... espondent 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 manufacturer was found during search to have been unaccounted. It is settled law that Revenue need not prove its case with mathematical precision. Once the evidence gathered by investigation brings out preponderance of probability and nexus between the modus operandi of the respondent with the goods it dealt, and movement of goods from origin to destination is possible to be comprehended, it cannot be ruled out that circumstantial evidence equally play a role - it is not only the photocopy that was used against the respondents, there are other credible and cogent documentary evidence, circumstantial evidence including oral evidence as well as experts report went against the respondents for which stand of Revenue cannot be criticized. The best evidence when demonstrate the modus operandi beginning from finding of unaccounted goods in the factory till parking of clandestinely removed goods and also throw light on the intention .....

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..... s manufacturer of Cotton Yarn. Investigation found that it had removed 2,76,050 kgs. of unaccounted Cotton Yarn without payment of duty from its factory under certain invoices issued to different dealers of Ludhiana, Amritsar and Delhi as tabulated below. S. No. PartiesName Appeal Nos. Penalty Imposed 1. M/s. Avinash Sales Corporation E/2567/2005 10,000/- 2. M/s. Goel Sons E/2571/2005 10,000/- 3. M/s. Shiva Yarn House E/2577/2005 10,000/- 4. M/s. Vijay Anand Traders E/2572/2005 10,000/- 5. M/s. Mangal Ram Sudershan Kumar 10,000/- 6. M/s. Goel Yarn Agency E/2579/2005 10,000/- 7. M/s. B.B. Ram Pal and Co. E/2570/2005 10,000/- 8. M/s. Kailash Hosiery Company E/120/2006 10,000/- 9. M/s. Vinay Traders 10,000/- 10. M/s. Saurabh Yarn Agency E/2576/2005 10,000/- .....

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..... of yarn valued ₹ 2,41,65,681/- to different buyers evading Central Excise Duty of ₹ 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 with the material facts available on record and found that 93 of such invoices were parallel and 21 invoices were carrier of unaccounted goods. He tested those invoices with the evidences gathered from octroi authority of Ludhiana Municipality corroborating entry of clandestinely removed goods to that municipal jurisdiction. 4.2 To find out relevancy of the parallel invoices, some of the invoices were sent for examination by Govt. document examiner. That authority informed that the documents were copies of some original and signature appearing therein were of Shri Madan Lal, Director of the respondent manufacturer. 4.3 Ld. Adjudicating authority found that there was recording of production around 5,000 kgs, after visit by central excise officers on 03.03.2001, while the production quantity r .....

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..... ed 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 invoices, finding of physically inventorised stock unaccounted etc. supported adjudication. Therefore, ignorance of all such material evidence by learned appellate authority, caused peril to Revenue for which it has been seriously prejudiced. 9.1 On the contrary, contention of the respondents was that the decision in one of the case of dealers made on 05.12.2013 by Final Order No.58638/2013, dated 05.12.2013 should not guide Tribunal to hold against present respondents. Photocopies given by the informer were unreliable since original thereof were not produced. Respondents relied on the following decisions to contend that adjudication is bad in law:- i. CCE Vs. Welcure Drugs Pharmaceuticals Ltd. [2014 (303) ELT 236 (Tri. Del.)]. ii. Pan Parag India Ltd. Vs. CCE [20 .....

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..... n 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 manufacturer was found during search to have been unaccounted. No doubt copy of copy is inadmissible in evidence as has been held the Honble Supreme Court in the case of Collector of Customs, Bombay Vs. East Punjab Traders [1997 (089) ELT 0011 (SC)], but in the present case, parallel invoices were not the only material to hold clandestine removal. There are several other contributory factors as argued by Revenue and found by learned Adjudicating Authority established clandestine removal of goods made by respondent manufacturer with the aid of the dealers causing evasion of excise duty. None of the arguments of Revenue were rebutted by respondents leading any cogent and credible evidence. 12. When multiple factors and preponderances of probabilities contrib .....

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..... ocument 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 dealer respondents officers were conduit to cause evasion of customs duty engineered by Respondent manufacturer. It is established principle of law that fraud and justice are sworn enemies. Therefore, Revenue deserves consideration and it should be allowed to arrest fraud. 16. It is settled law that Revenue need not prove its case with mathematical precision. Once the evidence gathered by investigation brings out preponderance of probability and nexus between the modus operandi of the respondent with the goods it dealt, and movement of goods from origin to destination is possible to be comprehended, it cannot be ruled out that circumstantial evidence equally play a role. In the present case, it is not only the photocopy that was used against the r .....

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