TMI Blog2015 (11) TMI 1243X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that penalty cannot be imposed on him being partner of appellant No. 1 and penalty has been imposed on the appellant No 1. We find from the order that on appellant No. 1 penalty imposed is under Section 11AC of the Central Excise Act, 1944, while in case of appellant no. 2 penalty has been imposed under Rule 26 of Central Excise Rules, 2002. Purpose of Rule 26 and Section 11AC are different. - No merit in appeal - Decided partly against assessee. - Appeal No. E/ 809, 810 & 887/10-MUM - Final Order No. A/929-931/15/EB - Dated:- 27-3-2015 - Mr. P.K. Jain, Member (Technical) And Mr. Ramesh Nair, Member (Judicial) For the Petitioner : Shri. Ashok Kumar Singh, Advocate For the Respondent : Shri. Ashutosh Nath, Asst. Commissioner(A.R.) ORDER Per : P.K. Jain Brief facts of the case are, based upon an intelligence that certain manufacturers (M/s. Shri. Salasar Ispat Pvt. Ltd. and M/s. MITC Rolling Mills Pvt. Ltd.) based in Nashik were indulging in large scale evasion of Central Excise duty by clearing finished goods clandestinely through a broker namely Shri. Umesh Modi, searches were conducted on 18/12/2006 on various places which included the factory of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the supplier, rate, quantity in metric ton, receipt date etc, were written. Here again, details were not only in respect of the present appellant No. 1 but also in respect of other suppliers who were also clearing the goods clandestinely without payment of duty and transacting through appellant No. 3. The statement of Shri. Pravesh Gautam, Director, M/s. SSIPL were recorded on various dates viz. 18/12/2006, 2/1/2007, 5/1/2007, 6/1/2007, 20/4/2007, 6/5/2008, 7/5/2008, 9/5/2008, 9/6/2008 and 3/7/2008 wherein he confessed the receipt of M.S. Ingots purchased from various manufacturers as recorded in statement for the period from 27/3/2006 to 16/12/2006. The transaction book records indicated the clandestine removal of CTD Bars in addition to M.S. Ingots by various manufacturers, wherein transactions were done through Appellant No. 3. 1.3 Appellant No. 1 is a partnership company. The main partner Shri. Todarmal. G Mundhara in his statement admitted the clandestine clearance of the goods (both as tabulated from records recovered from Shri. Umesh Modi s office and that of M/s. SSIPL)and also admitted that these goods were cleared without payment of duty without recording the details ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raw material is scrap. It is well known that Bazari scrap is available and there are no duty paying documents for such scrap and such transactions normally are in cash and therefore there is no question of getting any records relating to movement of such scrap. Moreover final product i.e. TMT/CTD Bar is used in construction industry and by individuals and it is sold in cash without bills in the market. Under these circumstances it is not possible for the department to get such documents. Transport documents are also not possible because these are destroyed or transportation is within the city or in the near by area. Learned A.R. further submits that case laws submitted by Ld. Counsel are altogether in different circumstances. In the present case the documents recovered are only for a very limited period. Documents recovered provides precise and complete details of goods, name of the customer, quantity, rate, specifications, name of supplier etc. The main appellant have admitted the details in his statement and such statement have not been retracted. Ld. A.R. also submitted that in view of settled legal position of law that what is admitted need not be proved, there was no need for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hri. Umesh Modi and also record seized from the office of M/s. SSIPL. From the records seized from office of Shri. Umesh Modi demand of is ₹ 19,80,855/-, while that from office of M/s. SSIPL demand is ₹ 25,18,599/-. Duty, interest and penalty have been adjudicated on first appellant while second and third appellant only penalty. 4.1 During the argument Ld. Counsel has submitted that the said office of M/s. SSIPL is common office of M/s. SSIPL, M/s. Gautam Enterprises, M/s. Shri Ganesh Parwati Steel and it was submitted that the said books contained the record of all the firms and therefore statement of Shri. Roshanlal Gautam who was proprietor of M/s. Gautam Enterprises should also have been recorded. We do not find any strength in this argument. The fact is that the said documents were recovered from an office is not in dispute. This place definitely was the office of M/s. SSIPL. Shri. Pravesh Gautam, appellant No. 3 is the Director of M/s. SSIPL, Proprietor of M/s. Shri. Ganesh Parwati Steel was present in the office at the time of search. The fact that place was also used by M/s. Gautam Enterprises will not make any difference in the present case as records recove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 3 himself. Under these circumstances, even if statements of appellant No. 2 are completely ignored in the context of penalty on appellant No. 3, there can not be any different conclusion. Under these circumstances, we do not find any force in the argument of appellant No. 3 about denial of cross-examination. 4.5 The final statements were recorded after showing the details and appellant No 1 and 2 have admitted of having clandestinely cleared goods without recording in the statutory records. It is well settled position in law that whatever has been admitted need not be proved. The admission of clandestinely clearance was admitted and continue to be admitted till date. The argument that Revenue has not produced any direct evidences is therefore irrelevant in the present facts and circumstances. In fact, appellant No. 1 have also deposited part of the duty during investigation. Under the facts and circumstances of the present case, we do not have any doubt whatsoever about clandestine clearance of the goods its s quantity or the value. We therefore uphold the duty and interest liability. 4.6 We also note that the penalty under Section 11AC is imposable on the Appellant No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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