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2015 (10) TMI 1561 - CESTAT AHMEDABAD

2015 (10) TMI 1561 - CESTAT AHMEDABAD - TMI - Duty demand - Seizure of goods - Undervaluation of goods - Non accounting goods - Reliance on diary of Production manager - Held that:- Appellant cannot accept the diary on piecemeal basis. Once they have accepted the contents of the seized diary in respect of demand of duty of ₹ 5,75,062.00 tallying with finished goods register, it is the duty of the appellant company to justify the clearance of goods on the basis of the said diary on demand o .....

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r M for fine or medium type of goods. It was observed that the description the invoices were not tallying with the grade, size as mentioned in the production slip. We find that it is evident from the record that the appellant company cleared the goods, mix size, medium grade as mentioned in the invoices and cartoons, which were arising after the production stage. The material available on record would show that the goods cleared second quality. Thus, the finding of the Adjudicating Authority tha .....

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er. - Decided partly in favour of assessee. - Appeal No. E/905-909/2007 and E/1139/2008 - Order No. A/11424-11429/2015 - Dated:- 15-9-2015 - MR. P.K. DAS, MEMBER (JUDICIAL) AND MR. P.M, SALEEM, MEMBER (TECHNICAL) For the Petitioner : Shri J. C. Patel, Advocate And Shri Rahul Gajera, Advocate For the respondent : Shri T.K. Sikdar, Authorised Representative ORDER Per: P.K. Das The relevant facts of the case, in brief, are that the M/s Lark Wires & Infortech Ltd (in short the appellant company) .....

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K.S. Tiwari, Production Manager of the appellant company. On the same day, the said officers also carried out search at the dealers premises namely M/s. A.R. Enterprises and at the residence of its Proprietor Shri Rajesh Kantawala, to whom the appellant used to sell the copper wires. The copper wires lying of the godown and the residence of the dealer were seized on the ground that, the same were received by the dealer without payment of duty from the appellant company. The statements of the em .....

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has appropriated the amount of ₹ 7,00,000.00 as deposited by the appellant company during investigation. Penalties were imposed on the other appellants, as under:- (a) Shri Vikas Ladha, Director of the Appellant Company ₹ 2,00,000.00 (b) M/s A.R Enterprises (Dealer) ₹ 1,00,000.00 (c) Shri K.S. Tiwari, Production Manager of the Appellant Company ₹ 50,000.00 (d) Shri M.J. Dave, Senior Commercial Manager of the appellant company ₹ 50,000.00 3. By the impugned order, t .....

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d the seized goods and imposed redemption fine of ₹ 1,26,000.00 on the dealer and also imposed penalty of ₹ 74,000.00 under Rule 26 of the Central Excise Rules, 2002 on the dealer. No penalty was imposed on the appellant company. By the impugned order, Commissioner (Appeals) upheld the Adjudication Order. Hence, the dealer M/s. A.R. Enterprises filed another appeal before the Tribunal. 5. Shri J.C. Patel, the Learned Advocate is appearing on behalf of all the appellants except the de .....

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Production Manager of the appellant company. The demand of duty of ₹ 75,506.21.00 is on seized goods at the residence and godown of the dealer on the ground that Central Excise Invoices of the appellant company for the said goods, were not available. The amount of ₹ 1,17,172.00 was demanded on the appellant company, on account of alleged undervaluation of Wires, sold to the dealer as the goods were wrongly described as Second Grade in the Central Excise Invoices. 7. The Learned Advoc .....

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goods sold to the buyers etc. It is also submitted that during the visit to the factory, by the Central Excise Officers, no excess/shortage of raw materials or finished goods was found. In this context, he relied upon the various decisions of the Tribunal and High Court. The demand of ₹ 5,75,062.00 is also on the basis of the same diary. In this context, the Learned Advocate submits that the quantities reflected in the said diary are corroborating with R.G.I./Production register and clear .....

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nt of ₹ 5,75,062.00 is tallying with the R.G.I./Production register. On the other hand, the other amount of ₹ 13,64,527.00, the appellants are contesting the authenticity of the diary. In our considered view, the stand taken by the appellants are totally contradictory. The appellant cannot accept the diary on piecemeal basis. Once they have accepted the contents of the seized diary in respect of demand of duty of ₹ 5,75,062.00 tallying with finished goods register, it is the du .....

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that the appellants cleared the goods under the description of Second Grade Enameled Wires of Copper-SWG Mix Size. The Adjudicating Authority observed that the cartoons were indicating F or M for fine or medium type of goods. It was observed that the description the invoices were not tallying with the grade, size as mentioned in the production slip. We find that it is evident from the record that the appellant company cleared the goods, mix size, medium grade as mentioned in the invoices and c .....

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eared under the cover of the Central Excise Invoices and on payment of duty and the copy of such invoices were at pages 306 to 310 of the appeal memorandum. In our view, this fact is also required to the examined by the Adjudicating Authority. The Learned Advocate cited the decision of the Honble High Court and Tribunal as the matter was decided on the basis of the evidences as stated above, We do not find any reason to discuss the details of the said case laws. 11. To sum up, the demand of dut .....

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