9911796707
TMI Blog2015 (11) TMI 1473X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Sandeep Gupta is that during this period, they were procuring the copper ingots without any bills from M/s. Mayank Metals, M-18, New Mandoli Industrial Area, Delhi-110093 (hereinafter referred to as Mayank), a proprietory concern of Shri Pawan Kumar Aggarwal, M/s. Shivam Metals, L-6, New Mandoli Industrial Area, Delhi-110093 (hereinafter referred to as Shivam), a proprietary concern of Shri Sanjeev Gupta and M/s. Vasudev Udyog, L-7, New Mandoli, Industrial Area, 110093 (hereinafter referred to as Vasudev) whose authorized person is Shri Jai Bhagwan and is its de-facto owner. On receipt of intelligence that SMS are indulging in large scale of evasion of duty by unaccounted manufacture and clandestine clearance of copper strips and copper wires being manufactured by them, the premises of-(a) factory of SMS (b) residential premises of Shri Sandeep Gupta at C-21, Geetanjali Enclave, Delhi, (c) residential premises of Shri Subodh Gupta, Inderpuri Extension, alleged to be production Manager of SMS, (d) shop premises of M/s. Sandeep Metal supply, Chawri Bazar, Delhi-110006, the trading premises of Sh. Sandeep Gupta and (f) factory premises of Mayank, Shivam and Vasudev were searched. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the invoices seized from his residence pertain to SMS-Ghaziabad; and that the spiral bound diaries recovered from his residence pertain to receipt of copper ingots and dispatch of copper strips/copper wires. 1.4 Enquiry also revealed that the goods were being cleared from the factory premises of SMS-Ghaziabad under parallel invoices without payment of duty to the shop premises of M/s. Sandeep Metal Supply of Shri Sandeep Gupta at Chawri Bazar, Delhi and in order to conceal the receipt of clandestinely removed goods from his factory, Shri Sandeep Gupta was showing bogus receipt of copper strips/copper wires, copper flats, etc, from various suppliers namely, M/s. Sai Enterprises, Chandni Chowk, Delhi, M/s. JMD Trading Company, Delhi, M/s. Mahalaxmi Agency, Delhi, M/s. M.K. Traders, Delhi, M/s. First International Business Limited, Bhiwari, M/s. Tirupati Marketing Sales India, Delhi, M/s. Shivam Traders-Delhi, M/s. Pacific Sales (India), Delhi, M/s. Aadhar Technology Private Limited-Dariyaganj, New Delhi and M/s. Apurva Enterprises-Ajmeri Gate, Delhi. On enquiry in respect of the above suppliers, it was found that either the same were closed for the long time or the same did not ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Shivam and Vasudev respectively under proviso to section 11A(11) of Central Excise Act, 1944 along with interest on it under section 11AB and besides this, penalty of equal amount were imposed on them under section 11AC, (b) duty demand of Rs. 6,71,05, 300/- was confirmed against M/s. SMS-Ghaziabad, under proviso to section 11A(11) of Central Excise Act, 1944 along with interest on it under section 11AB and besides this, penalty of equal amount imposed on them under section 11AC; (c) penalty of Rs. 5 crores was imposed under Rule 26 (1) of Central Excise Rules, 2002 on Shri Sandeep Gupta proprietor of M/s. Sandeep Metal Supply and (d) penalty under Rule 26 (1) of Central Excise Rules, 2002 was imposed on the following persons as under: (i) Shri Pawan Kumar Aggarwal, Proprietor of M/s. Mayank-Rs. 2 crores. (ii). Shri Sanjeev Gupta proprietor of Shivam - Rs. 2.5 crores. (iii). Jai Bhagwan authorized person of Vasudev -Rs. 30 lakhs. (iv). Shri Subodh Gupta, Ex-Manager, M/s. SMS-Ghaziabad - Rs. 20 lakhs, (v). Shri Mukesh Chauhan, Ex-Accountant, M/s. SMSGhaziabad- Rs. 10 lakh. 1.8 Against the above order of the Commissioner, these appeals h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... based; that this has vitiated the proceedings and on this very ground itself, the impugned order merits to be set aside; that as regard as Mayank, Shivam and Vasudev, as deposed by Shri Pawan Kumar Aggarwal, proprietor of Mayank, Shri Sanjeev Gupta, proprietor of Shivam and Shri Jai Bhagwan authorized signatory of Vasudev Udyog, in the course of the cross-examination before the Commissioner, they have stated that they had never supplied any material to SMS-Ghaziabad under the instructions of Shri Sandeep Gupta and that Shri Jai Bhagwan in his cross-examination further stated that he had been forced to pay the duty of Rs. 1,60,689/- after one month from the date of search of his premises on 27/7/2010 under the directions of the officers of DGCEI on 4522 kg. copper ingots seized from TATA 407 vehicle on 27/7/2010 which did not pertain to him. Shri Pradeep Jain, pleaded that the departments case against SMS, Vasudev, Mayank and Shivam is not sustainable; that the appellants have strong prima facie case in their favour and hence, the requirement of pre-deposit of the duty demand, interest and penalty by SMS-Ghaziabad, Shivam, Mayank and Vasudev and the requirement of pre-deposit of pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal proprietor of M/s. SBU-Ghaziabad also. Shri Khanna further pleaded that there was unaccounted excess stock of raw material as well as finished goods in the premises of SMS-Ghaziabad at the time of its search on 27/7/2010 and similarly, there was an excess unaccounted stock of copper ingots in the premises of all the three ingots suppliers, Mayank, Shivam and Vasudev. Shri Khanna, therefore, pleaded that the account of receipt of raw material and of manufacture and sale of wire/strips in the spiral bound diaries recovered from the premises of Shri Subodh Gupta pertains to SMS-Ghaziabad as Shri Subodh Gupta was the main person and production Manager of SMS-Ghaziabad and was involved in day to day functioning of the factory of the SMS-Ghaziabad. Shri Khanna also pointed out to findings of the Commissioner in para 1.2 of the impugned order from which it is seen that at the time of search of the factory premises of SMS-Ghaziabad, in addition to excess stock of 4522 kg copper ingots and excess unaccounted stock of 4413 kg copper strips, certain hand written kacha slips were also found which showed the quantity of production on various dates which were not found entered in the daily s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andestinely without payment of duty under parallel invoices. In this regard, the department mainly relies upon the statement dated 27/7/2010 of Shri Subodh Gupta and the documents recovered from his premises. However, besides this, there is also a lot of other evidence which indicates that SMS-Ghaziabad was receiving unaccounted copper ingots from Shivam, Mayank and Vasudev. On the day of search, i.e., on 27/7/2010, Investigating Officers intercepted a motor cycle driven by Shri Mohd. Ishraf at Swea Dham Mandoli Industrial Area and while his questioning was going on, a Tata 407 Vehicle with registration no. DL-1LM4572 was also intercepted by the officers. This vehicle was driven by one Shri Anil Kumar and another person named Shri Arvind Kumar, labourer of SMS-Ghaziabad was also sitting in the vehicle. It was loaded with copper ingots which according to the driver and Shri Arvind Kumar had been loaded from the premises of Maynak Metals, Binni Ki Bhatti, Mandoli Industrial Area, Sewa Dham, Shahdara. Subsequently, on enquiry, Shri Mohd. Ishraf also admitted that he was piloting the Tata 407 vehicle loaded with the clandestinely cleared consignment of copper ingots from the factory of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aders, M/s. First International Business Limited, Tirupati Marketing Sales India, Delhi, M/s. Shivam Traders-Delhi, M/s. Pacific Sales (India), Delhi, M/s. Aadhar Technology Private Limited-Dariyaganj, New Delhi and M/s. Apurva Enterprises-Ajmeri Gate, Delhi and on enquiry either these firms were found to be closed since long or were not existing or they denied having supplied copper strips or copper wires to M/s. Sandeep Metal Supply, Chawri Bazar. 8. From the perusal of the impugned order-in-original it is seen that there is a lot of evidence on record against SMS-Ghaziabad and the copper ingots suppliers Shivam, Mayank and Vasudev and as such it cannot be said that entire case of the department against SMS-Ghaziabad, Shivam, Mayank and Vasudev is based only on the statement of Shri Subodh Gupta and on the basis of the documents recovered from his premises. 9. In these circumstances, we are of the prima facie view that criminal complaint filed by Shri Sandeep Gupta against Shri Subodh Gupta before ACJM, Ghaziabad is only a strategy to dissociate himself from the documents recovered from the premises of Shri Subodh Gupta. 10. In view of the above discussion, this is not the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
