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2015 (11) TMI 671 - CESTAT MUMBAI

2015 (11) TMI 671 - CESTAT MUMBAI - TMI - Duty demand - Clandestine removal of goods - Held that:- Diaries were recovered in Mumbai from a place where the appellant s office exists. A plea is being made that the office is a common office for three firms. Out of other two firms, one is owned by the father of Shri Pravesh Gautam in the name and style of M/s.Gautam Enterprises and other firm is owned by Shri Pravesh Gautam. The fact that the place is used as common office will not make any differen .....

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ments prepared. He has not stated in any of the statements about any particular entry that the said entry pertains to M/s.Gautam Enterprises or any other firm. Under the circumstances, we are of the considered view that the plea of the learned Counsel requires outright rejection and we accordingly do so. - Statements of Shri Pravesh Gautam were recorded over a period of more than one year and there are as many as nine statements. We do not find anything contradictory in these statements. We .....

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e diaries are also not under dispute and the contents clearly indicate that the appellant has purchased clandestinely cleared goods without payment from various manufacturers. Under the circumstances, we do not see any reason to give any importance about the non-availability of transportation details or not able to find discrepancy in the factory in the facts and circumstances of the present case - Decided against assessee. - APPEAL No.E/1136, 1137 & 1390/10 - Final Order No. A/1456-1458/15/EB - .....

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to present appellant. 2. Since all the three appeals have arisen out of the common investigations and are based upon broadly the similar facts. These are being taken up together. 3. Brief facts of the case are that based upon an intelligence that the appellant and another manufacturer were manufacturing and clandestinely clearing the goods, namely, TMT Bars and MS Ingots without payment of duty through a broker, namely, Shri Umesh Vrijlal Modi, simultaneous searches were conducted at number of p .....

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ibed as item No.23, 24 & 26 of the Panchnama. Shri Pravesh Gautam, who is the Director of the appellant was present and his statement was recorded on that date and also on various dates. The appellant explained the contents of these diaries. The diaries contain the details of MS ingots purchased by them from various manufacturers of MS ingots. The details included consignment-wise, date, rate, suppliers name, brokers name, etc. Another diary (No.26) contains the details of the payments mad .....

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brokers admitted of having supplied the MS ingots to the appellant without payment of duty. In fact most of the suppliers paid the duty involved on such MS ingots along with interest, penalty, etc. After the detailed investigation, show-cause notices were issued to the manufacturer of MS ingots for recovery of duty and penalty and to the brokers and the present appellant who was the purchaser of such clandestinely cleared MS ingots for penalty. After receiving the replies, the cases were adjudic .....

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notices and after adjudication, a penalty of ₹ 75,000/-, ₹ 75,000/- and ₹ 30,000/- were imposed on the present appellant in the three cases. Aggrieved by the order, the appellant had filed appeals before the Commissioner (Appeals), who has upheld the order and aggrieved by the said order, the appellant is before us. 4. Ld. Counsel for the appellants main contention was that the documents have been recovered from Mumbai office and this office was common office for three firms w .....

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stigators , penalty cannot be imposed on the appellant. 4.1 Second submission of the learned Counsel was that the statement of Shri Pravesh Gautam, Director in the appellant company were recorded under duress and after recording of the statement, on the next day, the statements were retracted by him and under the circumstances statements made by him cannot be relied upon by the Revenue. 4.2 The third submission made by the learned Counsel was that he has asked for the cross examination of the su .....

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el) b) Basudev Garg Vs. CC - 2013 (294) ELT 353 (Del) c) CCE Vs. Parmarth Iron Pvt. Ltd., - 2010 (260) ELT 514 (All.) d) Vinod Solanki Vs. UOI - 2009 (233) ELT 157 (SC) 4.3 The learned Counsel also submitted that the Revenue has not found any details about the transportation of the goods and under the circumstances, penalty cannot be imposed on the appellant. 5. The learned Additional Commissioner (AR) reiterates various points made in the three impugned orders. The learned ARs first submission .....

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appellant but to M/s.Gautam Enterprises, Shri Pravesh Gautam could have explained the same and Shri Pravesh Gautam could have explained the remaining entries. Revenue thereafter would have called his father for his statement. He further submitted that Shri Pravesh Gautam explained all the entries and he did not indicate that any of the entries is belonging to M/s.Gautam Enterprises. Under the circumstances, the plea taken at this stage is without any basis and required to be outrightly rejected. .....

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what is wrong in the recorded statement. The learned AR further submits that in subsequent statement of Shri Pravesh Gautam has invariably confirmed the contents of earlier statements and under the circumstances the retraction is no consequences whatsoever. It was also submitted that in the statements Shri Pravesh Gautam has explained the contents of the diary for example, the name of the supplier written in brief was explained in full. Similarly, the name of the broker is written in brief. He .....

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cause notices and calling them for cross-examination would imply them to admit the clandestine clearance and evasion of duty during cross-examination which is violation of article 20 (3) of the Constitution of India. Learned AR relied upon the decision of this Tribunal in the case of Maya Mahal Industries reported in 1995 (80) ELT 118 (Tri). Under these circumstances, co-noticees could not have been called for cross-examination and this plea is only to delay the adjudication proceedings. As far .....

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the out set we observe that whole case of the department is based upon the documents recovered from the appellants office in Mumbai. The documents are diary No.23, 24 & 26. It is not disputed that these diaries were recovered in Mumbai from a place where the appellants office exists. A plea is being made that the office is a common office for three firms. Out of other two firms, one is owned by the father of Shri Pravesh Gautam in the name and style of M/s.Gautam Enterprises and other fir .....

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upon these diaries detailed tabulations were prepared by Revenue indicating various suppliers from whom clandestinely cleared goods were purchased by the appellant. These were again shown to Shri Pravesh Gautam who after going through the diary and the tabulation has confirmed the details in the statements prepared. He has not stated in any of the statements about any particular entry that the said entry pertains to M/s.Gautam Enterprises or any other firm. Under the circumstances, we are of th .....

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statements including the ones which have not been retracted, Shri Pravesh Gautam has confirmed the details given in the initial statements. It is also see that the retraction letters were sent under Certificate of Posting and not by Speed Post/Registered Post. We have also gone through the retraction letters which do not indicate which portion of the statement is incorrect or recorded under duress. 6.4 Keeping in view the overall circumstances of the case and the contents of the statements as al .....

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