Contact us   Feedback   Annual Subscription   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2015 (10) TMI 2140 - CESTAT NEW DELHI

2015 (10) TMI 2140 - CESTAT NEW DELHI - TMI - Duty demand - Clandestine removal of goods - pages / records seized during search - onus to prove - Held that:- Merely on the basis of these papers allegedly containing the production and dispatch and in absence of any corroborative evidence or statement of any employee/ director of Appellant company accepting such clandestine removal, it cannot be concluded that M/s SUPTL has removed these goods without payment of duty. I also find that no evidence .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ith regard to purchase of raw material, manufacture of final goods, flow back of money or any seizure of statements from purchasers. - Decision in the case of M/s T.G.L.Poshak Corporation (2001 (9) TMI 683 - CEGAT, CHENNAI), followed.

Only for the reason that M/s Arhat an unregistered unit issued few invoices under same serial number cannot be interpreted to the extent that the goods manufactured by M/s SUTPL were cleared under the invoice of M/s Arhat. No modus operandi has been brou .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

hus it is only a farfetched assumption without any evidence and cannot be accepted.

In the show cause notice it is nowhere coming as to from which place these documents were seized. No panchnama has been relied upon in the show cause notice. Further it is not known as to who is the author of such documents. I find from the stock statement that nowhere the statement shows as to which concern such statement belong. It is alleged that stock statement belong to M/s G.M.Trading company. H .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

id not bring any corroborative evidence such as excess receipt of raw material, employment of labour, receipt of goods by any consignee, transportation of goods to the buyers, receipt of sales proceedings by M/s Sunultra which can support the case of the revenue. Further Shri Sunil Gandhi or any employee of M/s SUTPL was neither questioned about removal of goods without payment of duty neither they accepted any clandestine removal - demand and penalty against M/s SUTPL is not sustainable. I furt .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e appeals are directed against the impugned Order dt. 15.06.2010 passed by the Commissioner, Customs, Central Excise & Service Tax (Appeals), Indore wherein the demand of Central Excise duty on charges of alleged clandestine clearance as confirmed by the original authority was upheld. Vide the impugned order, duty of ₹ 13, 85,967/- was confirmed and penalty of equivalent amount was imposed against M/s Sun Ultra Technologies (SUTPL). Further penalty of ₹ 11,00,000/- upon Shri Suni .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

emption. During the visit of the Central Excise Officers to the factory premises of both the concerns, residence of Shri Sunil Gandhi as well as other premises, the officers seized various records and papers which culminated in passing of impugned order against the Appellants. Out of demand of ₹ 13,85,967/- a demand of ₹ 1,91,552/- was made against M/s SUPTL on the basis of page no. 4 to 28 of file marked as A- 9 which was seized from the residence of Shri Sunil Gandhi. It was allege .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

7; 3,16,139/- was made against M/s SUTPL on the ground that from the invoice file of Arhat found at the residence of Shri Sunil Gandhi, it was found that M/s Arhat has issued invoices bearing same serial number on different dates to different buyers and it appears that the goods manufactured by M/s SUTPL were cleared under the cover of invoices of M/s Arhat. Further the SCN pointed out four invoices of M/s Arhat alleging that in case where No invoice issued is mentioned in sheet prepared on the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

to 28 of File A/9. That the challan receipt of Arhat is signed by Shri Mahavir Prasad Jain, Maintenance Supervisor of Arhat indicated clearance of goods manufactured by Arhat and cleared under challans. Further that the invoices of M/s Arhat were prepared by Shri Aditya Saxena, the authorized signatory and Manager of SUTPL and that Shri M.P. Jain, the Works Manager of M/s Arhat in his statement dt. 29.10.02 stated that all records are maintained by owners. That the file containing invoices of M/ .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

registers, cash, petty cash, group sundry debtors for a fortnight indicated the details which prima facie leads to draw an inference that it belongs to a firm which is receiving electrode from Gwalior and selling to the various parties as per details in sales register during a particular period. It appears that the said documents belong to consignment agent M/s GMT. That M/s GMT did not submit the details of deposit in the bank for the said period. That some of the details mentioned in the sales .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d that these statements belong to their customer, then it may be taken as that Gwalior means sales, goods returned means goods returned to Appellant. That proprietor of M/s GMT Shri Girish Mathur refused that the sales register for the period 01.06.02 to 15.06.2002 and the invoice no. 1226 issued by G.M.T belong to them. It was alleged that it appears that the said documents i.e. Stock statements, sales register etc. kept in the files A-8,A-4 and A-9 belonged to M/s GMT and the same were prepare .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ubmit that in case of demand of ₹ 1,91,552/- none of the persons has stated which can support the revenue s case. That Shri Sunil Gandhi never stated that there is any clandestine removal. That even the officers did not put him to question as to whether the goods has been removed without payment of duty. That he was only asked as to whether the details in sheet are as per the page no. 4 to 28 of File A-9 to which Shri Sunil Gandhi had clearly stated that the pages are not part of their acc .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

der the cover of invoices of M/s Arhat. That it can be seen from the statement of Shri S.L.Gandhi who at that time was 70 years of age that he was helped by his son Shri Sunil Gandhi to look after his business. That comparison of invoices of M/s Arhat with page no. 4 to 28 of File A 9 seized from residence cannot be a ground to demand duty as there is no evidence that such pages contain actual details of raw material receipt, production and dispatch of goods. He further submits that if invoice o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

seized from various places, but no panchnama was prepared to show or to prove as to from where the said documents i.e stock statements, sales registers, cash, petty cash, group sundry debtors were seized. That though some register of stock statement relied upon for making demand against M/s SUTPL were matching with the sales register of M/s G.M.Trading but it can be seen that Shri G.M.Mathur, the proprietor of M/s G.M Trading refused that the records belong to his firm. That Shri Mathur when as .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

there is no evidence of receipt of raw material in excess by M/s SUTPL, the production of any excess goods, transportation of goods, receipt of payment of any goods alleged to have been removed clandestinely which can support the case of the revenue. He also draws my attention to the decision of the Tribunal in case of confiscation of excess stock in same investigation wherein the redemption fine and penalty was reduced holding the same as irregular maintenance of accounts. He also submits that .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

etics Pvt. Ltd. Vs. CCE, Ahmedabad 2015 (318) ELT 487 (Tri-Ahmd) * CCE, Ludhiana Vs. Raj Lakshmi Dyeing & Printing Mills 2014 (312) ELT 379 (Tri. - Del) * Kalindi Ispat Pvt.Ltd. Vs. CCE, Raipur 2014(309) E.L.T. 204 (Tri- Del) * CCE, Raipur Vs. Shree Nakoda Ispat Ltd. 2014 (308) E.L.T. 612 ( Tri Del.) 4. The learned Commissioner (A.R.), Mrs. Ranjana Jha appearing for the Revenue has reiterated the findings recorded in the impugned order. 5. Heard the learned Counsel for the parties and peruse .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

dly containing the production and dispatch and in absence of any corroborative evidence or statement of any employee/ director of Appellant company accepting such clandestine removal, it cannot be concluded that M/s SUPTL has removed these goods without payment of duty. I also find that no evidence has been shown that these goods were cleared to some person and how such alleged clandestine removal has been suppressed. Further I find that Shri Sunil Gandhi in his statement dt. 21.11.2006 refused .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ure of final goods, flow back of money or any seizure of statements from purchasers. 5.1. The second demand of ₹ 3,16,139/- has been made against the Appellant on two ground. The first portion of demand has been made on the ground that from the invoice file of M/s Arhat found from the residence of Shri Sunil Gandhi, it was found that M/s Arhat has issued more than one invoice under same serial number. The second portion of demand is on the ground that in the sheet prepared by the officers .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

regard second portion of demand that in the sheet prepared on the basis of papers allegedly containing details of raw material, production and dispatch wherever remarks no invoice issued was given are clearance of goods manufactured by SUTPL by M/s Arhat, I find that in absence of any evidence of any of the units, the allegation cannot sustain. There are no evidence that any of the units has forged their documents to show that the goods were manufactured by M/s Arhat. Thus it is only a farfetche .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

pted fact that Shri Sunil Gandhi was helping his father Shri S.L.Gandhi in running after the business of M/s Arhat. I am thus of the view that allegation of clearance of goods under the cover of invoices of M/s Arhat without any evidence does not sustain. and thus no demand can be made. 5.2. In case of demand of ₹ 8,78,276/- I find that the demand is based upon the stock statement which is alleged to be of M/s G.M.Trading company a proprietorship concern of Shri G.M. Mathur. Reliance has b .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

who is the author of such documents. I find from the stock statement that nowhere the statement shows as to which concern such statement belong. It is alleged that stock statement belong to M/s G.M.Trading company. However I find that the officers did not investigated about such stock statement from M/s G.M.Trading Co. Although the statement of Shri G.M. Mathur was recorded, however no question were asked to him regarding such statement. He was only asked question regarding sales register to whi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version