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2015 (9) TMI 673 - CESTAT NEW DELHI

2015 (9) TMI 673 - CESTAT NEW DELHI - TMI - Waiver of pre-deposit - clandestine removal of goods - validity of evidences - Penalty u/s 11AC and Rule 26 - Held that:- Out of total duty demand of ₹ 74,06,356/-, ₹ 12.93 lakh is based on the entries in the purchase file recovered on 12/11/2008 from the premises of M/s.KIL at J-1200, Palam Vihar, Gurgaon , a portion of which was rented out to Shri Ravi Saini, an employee of KIL. There is no dispute that Shri Devender Arora, Managing Direc .....

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pen drives and CPU. Duty demand of ₹ 44 crores had been raised against M/s.KIL based on the CPU data and the Commissioner by order dated 5.1.14 expressing doubt about the genuineness of that data has dropped the demand on the ground that the data has been tempered with. However, in the present case, the Commissioner while confirming the duty demand based on the data retrieved from the pen drives has not gone into the question as to whether the data is genuine or is tampered with. However, .....

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Industrial Area Phase-III, Bhiwadi, Dist. Alwar manufacture M.S,Ingots. Shri Devender Arora, is the Director of the appellant company. One of the buyers of M.S.ingots M/s.Kamdhenu Ispat Ltd., (KIL) which is rolling mill. In the course of search of the premises of M/s.KIL at J-1200, Palam Vihar, Gurgaon on 12.11.2008, certain pen drives, CPUs and Lap Tops, ingot purchase file, documents relating to purchase of raw materials i.e. M.S.ingots and MS scrap and raw materials recovered. At that time, .....

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M/s.KIL purchased M.S.Ingots from the appellant company without payment of duty at which the duty involved was ₹ 12.93 lakh. The Pen drives and CPU seized on 12.11.2008 were sealed. The same were, thereafter, sent to GEQD, Hyderabad for retrieval of data. On the basis of data retrieved from the pen drives, it was found that during the period 1.4.2008 to 11.11.2008, the appellant had supplied M.S.ingots to KIL without payment of duty and total duty involved on these M.S.Ingots was about &# .....

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Shri Devender Arora for - (a) demand of duty amounting to ₹ 74,06,356/- from the appellant company in respect of clearances of M.S.Ingots during the period from April, 2008 to November, 2008 alongwith interest under section 11AB (b) imposition of penalty on the appellant company under section 11AC, and (c) imposition of penalty under Rule 26 on Shri Devender Arora, Director of the appellant company. 3. The show cause notice was adjudicated by the Commissioner vide Order-in-Original dated 2 .....

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Surbhi Sinha, learned Counsel for the appellant pleaded that the entire duty is based on two types of documents - (a) purchase file recovered at premises of M/s.KIL at J-1200, Palam Vihar, Gurgaon on 12.11.2008, a portion which had been rented out to M/s.KIL, and (b) data retrieved from the pen drives recovered from the above premises, that the entries in the purchase file regarding supply of M.S.ingots to M/s.KIL also mention the registration of vehicle, in which the goods have been despatched .....

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en allowed, that the panchnama of recovery of the documents, CPUs and pen drives has been not signed by the seizing officer, that remaining duty demand of ₹ 61 lakh is based on the data retrieved from the pen drives, and that on the basis of the data retrieved from the pen drives, the demand had been raised against KIL but the same has been dropped by the Commissioner vide Order-in-Original no, dt.5,9.14, that in para 51(v) of the order, the Commissioner has made observation that the credi .....

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mises, the pen drives had been recovered has not been allowed and even panchnama seizure is not signed by the seizing officer. She pleaded that in these circumstances, the amount of ₹ 10 lakh already deposited by the appellant is sufficient for hearing their appeals and the requirement of pre-deposit of balance amount of duty demand, interest and penalty may be waived for hearing of the appeals and recovery thereof may be stayed. 5. Ld.DR opposed the stay applications by reiterating the fi .....

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t the statement of Shri Devender Arora was not retracted by him and it is only at this stage of filing of reply to the show cause notice, and that retraction has been made that retraction after four years, is only an afterthought. He cited the judgement of the apex court in the case of CCE vs. Kalvert Foods India Pvt.Ltd. reported in 2011 (270) ELT 643 (SC) wherein the apex court observed that the statements recorded by the Central Excise Officers are admissible as evidence, an they are not poli .....

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icers are not Police Officers. He, therefore, pleaded that the amount paid by the appellant during the investigation is not safeguard to the interests of the Revenue. 6. We have considered the submissions made from both sides and perused the records. 7. Out of total duty demand of ₹ 74,06,356/-, ₹ 12.93 lakh is based on the entries in the purchase file recovered on 12/11/2008 from the premises of M/s.KIL at J-1200, Palam Vihar, Gurgaon , a portion of which was rented out to Shri Ravi .....

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