TMI Blog2012 (3) TMI 403X X X X Extracts X X X X X X X X Extracts X X X X ..... we propose not to impose separate penalties on MSRMPL. Appeal allowed - decided partly in favor of Revenue. - E/1456/2006, E/313, 315, 1588/2007, E/1457, 1459, 1462/2006, E/1589, 1616-1622, 1696-1697, 1788, 1865, 1945, 3154/2007, E/462, 484, 489/2008 - Final Order Nos. A/295-318/2012-EX(BR) - Dated:- 13-3-2012 - Ms. Archana Wadhwa, Member (J) and Shri Mathew John, Member (T) Shri K.K Anand, Advocate, for the Appellant. Shri Sunil Kumar, AR, for the Respondent. ORDER [Order per : Mathew John, Member (T)]. - In this proceeding 24 appeals filed by Revenue are being considered. Out of these 4 appeals are directed against manufacturers of steel ingots who supplied such goods without payment of duty to M/s. Mahajan Steel Rolling Mills Pvt. Ltd. ( MSRMPL for short) who in turn manufactured unaccounted rolled products from such ingots and cleared it without payment of duty. Twenty appeals are directed against MSRMPL on whom penalty under Rule 209A of the Central Excise Rules, 1944 were imposed in the adjudication orders for having bought such non-duty paid goods. The penalties have been dropped by Commissioner (Appeals). 2. We have heard both sides and peruse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clandestine removal are the following : (i) Records maintained by Mola Kanda showing weighing of trucks going out of the factory and trucks taking raw materials into the factory of MSRMPL which were not accounted in the books of MSRMPL. (ii) Financial records of MSRMPL showing payment of charges to Mola Kanda for consignments accounted in the books of account but not showing charges of weighing done for consignments not accounted. (iii) Seizure made on 6-9-2001 of goods carried by tractor trolley PUK 2888 transporting goods to M/s. Sangeeta Tools Ltd. without invoices showing duty payment. (iv) Follow up search made at M/s. Sangeeta Tools Ltd. revealing another consignment which was earlier cleared from MSRMPL to this unit without payment of duty. (v) Follow up search at the factory premises of MSRMPL which confirmed shortage of 20.815 tonnes of rectangular bars. (vi) Statement of Sh. Sood, Director of MSRMPL recorded on 6-9-2001. (vii) Statement on 6-9-2001, of Sh. Sandeep Aggarwal, Director of M/s. Sangeeta Tools Ltd. to which factory the goods seized were intended to be delivered. (viii) Statement dated 11-9-2011, given by Sh. Jagdish S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horized signatory of the appellants disowned anything to do with the entries appearing in Mola Kanda records and not appearing in the books of account of the respondent and MSRMPL. However in those cases where corresponding entries were found in the books of account except for the fact that the quantities accounted were lower, Shri Charanjit Singh said that it might have occurred due to clerical errors and that the respondents was willing to remit duty amounting to ₹ 49,471/- on that count, though he backtracked from his commitment initially given. 11. The main defence of respondents are the following : (i) The respondent had no dealing with the Mola Kanda and the records maintained by that Mola Kanda cannot be evidence against them; (ii) The Mola Kanda might have made clerical mistakes in showing the registration number of their vehicles against the impugned entries; (iii) The Mola Kanda might have indulged in fake transactions either to give push to their balance sheet for bank purpose or to meet their other expenses; (iv) Revenue has not recorded statements of MSRMPL to clarify the entries in records of Mola Kanda; (v) The weighment slips ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following cases :- (i) Doaba Alloys Casting (P) Ltd. v. CCE, Delhi - 2003 (159) E.L.T. 681. (ii) Madhu Aluminium Pvt. Ltd. Ors v. CCE, Indore - 2003 (54) RLT 296. (iii) Singla Steel Ltd. v. CCE, Chd. - 1997 (22) RLT 916. Wherein it has been held that weighment challan of weigh bridge owner or lorry receipt is not a conclusive proof to substantiate the fact of clandestine removal in the absence of corroborative evidence. The Hon ble CEGAT has also held in the following cases :- (i) Rama Shyama Paper Ltd. v. CCE - 2004 (168) E.L.T. 494 (ii) TGL Poshak Corporation v. CCE - 2002 (140) E.L.T. 187. (iii) MM Dying Finishing Mills v. CCE, Chd. - 2002 (139) E.L.T. 143. that records of third party cannot be considered as a conclusive evidence of clandestine removal of goods in the absence of corroborative evidence. It is a settled law that the liability cannot be fastened on an assessee on the strength of documents seized from the possession of third party. The Apex Court in the case of M/s. Oudh Sugar Mills Ltd. v. UOI - 1978 (2) E.L.T. (J172) (S.C.) has already held that if the findings of the authorities are reached on assumption, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legation. Receipts issued by Dharam Kanda alone do not prove the case of the respondent. In the circumstances, we hold that the allegation of clandestine removal is not proved and accordingly, set aside the demand of duty on 262.535 MTs of MS ingots In the case above, there was evidence of receipt of raw material. Whereas in the case now being considered there is evidence of receipt of raw material without payment of duty. Some of such suppliers have actually paid the duty evaded. Further in this case the weighing slips were co-related with the books of account to show how the weighing slips show clearances of goods in the case of accounted goods. So it is very obvious that where corresponding entries are not found in the books of account those related to clandestine removals. Further conclusion in such matters is a result of overall appreciation of evidences put forth and cannot be taken as rule that weighing slips at weigh-bridges are no evidence at all. (ii) CCE, Chandigarh v. Dashmesh Castings - 2001 (130) E.L.T. 658 There is no ruling in this case that third party documents cannot be evidence. Extracts of a decision that the case was not prove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order is reproduced below : 3.1 The learned Advocate submitted that one of the main issue against the Appellants is that they had effected clandestine removal of 966.259 MT of excisable goods to M/s. Chitra Traders without payment of duty during the period from 19-6-2000 to 22-6-2001 on the basis of books of account resumed from Chitra Traders; that the records resumed from Chitra Traders were manipulated; that Shri R.K. Mittal was asked in his cross-examination as to how the ledger seized on 24-6-2001 bore an entry of 26-6-2001; that he had admitted that the entry dated 26-6-2001 was in his own handwriting; that the finding of the adjudicating authority that the 26-6-2001 was a slip of pen is misplaced because if it is a slip of pen, then the original entry generated in the cash book must be available. He also mentioned that both S/Shri Kamlesh Singh and Anurag Sharma, Inspectors, stated in their cross-examination that no enquiry was made from Chitra Traders as to whom goods were sold or disposed by them; that Anurag Sharma also mentioned that he did not verify how seven GRs not relating to Chitra Traders were resumed from their business premises; that his cross ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T. 1546 (S.C.) (ii) Sita Cement Ltd. v. CCE - 2003 (153) E.L.T. 204 (iii) Gulabchand Silk Mills Pvt. Ltd. v. CCE - 2005 (184) E.L.T. 263. 16.3 The contention that unless details of all clandestine removal are written down by the person doing such activity and signed by such person it cannot become evidence against him is very fallacious argument as observed by the Tribunal in the case of Gulabchand Silks (supra). This view is supported by the decision of the Apex Court in the case of Bhoormal (supra). So each case has to be decided by taking into account the overall facts and appreciation of the quality of evidence. Though the records maintained at Mola Kanda are not signed records those have been authenticated by the statements given by the persons running Mola Kanda. The appellants did not cross-examine these persons to rebut their statements. 14. We note that in this case neither M/s. APM Associates Pvt. Ltd. nor MSRMPL, at the adjudication stage, wanted to cross-examine the persons who maintained the registers at the Mola Kanda. Thereafter they cannot be raising such requests at subsequent stages of appeal. 15. We find from the evidences appearing against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The facts recorded and the defence arguments of the respondents are on the same line as in the first case of APS Associates. We find no reason to come to a different conclusion in this case. 21. However, we notice that the appellants had paid duty of ₹ 20,289/- and penalty of ₹ 5,072/- before adjudication. However, penalty is imposed corresponding to duty amount inclusive of the amount of ₹ 20,239/-. So we reduce the penalty by this amount. Further, we note that the adjudicating authority did not give option to the appellants to pay the duty involved along with interest and 25% of duty demanded as penalty within 30 days of receipt of the order. Following the decision of the Delhi High Court in the case of K.P. Pouches v. Union of India - 2008 (228) E.L.T. 31. We give such option with the condition that such payment should be made within 30 days of receipt of this order failing which full penalty will have to be paid. Appeal No. E/315/2007 against Sharu Steel Ltd. 22. In this case duty demanded is in respect of two consignments in the vehicle of the respondents seen to be weighed at Mola Kanda but not appearing in the books of account of the respondents &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceipt of this order failing which full penalty will have to be paid. Twenty Appeals filed against MSRMPL 30. In this case Revenue argues that the evidences placed by Revenue is good enough to prove the charge of buying non-duty paid excisable goods. Thus issue has been considered in the appeal decided in the earlier order and the four appeals decided above in this order. We do not propose to examine this issue in detail in each case because we feel that it is not necessary to impose penalties on MSRMPL in these cases. 31. MSRMPL argued that a penalty under Rule 209A could not have been imposed on them as they are a company and such penalty could be imposed only on natural persons. They rely on the following decisions in support of their argument. (i) Woodman Industries v. CCE - 2004 (164) E.L.T. 339 (Tri.-Kol.) (ii) Commissioner v. Woodman Industries - 2004 (170) E.L.T. A307 (S.C.) (iii) Aditya Steel Industries v. CCE - 1996 (84) E.L.T. 229 (Tri.) (iv) Universal Radiators Ltd. v. CCE - 2008 (223) E.L.T. 630. 32. We find that the ruling of the Tribunal in the case of Woodman Industries is that penalty under Rule 209A could be imposed on natural pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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