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2015 (11) TMI 1473 - CESTAT NEW DELHI

2015 (11) TMI 1473 - CESTAT NEW DELHI - TMI - Waiver of pre deposit - Duty demand - Clandestine removal of goods - Parallel invoices - Held that:- 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 .....

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f Maynak Metals, Binni Ki Bhatti, Mandoli Industrial Area, Sewa Dham, Shahdara.

All these evidences indicate that SBU was firm floated by Shri Sandeep Gupta in the name of his employee Shri Subodh Gupta. It is also seen that while goods manufactured by SMS-Ghaziabad were being cleared under parallel invoices without payment of duty to M/s. Sandeep Metal Supply, Chawari Bazar, M/s. Sandeep Metal Supply were showing purchase of the same goods from a number of suppliers namely, M/s. Sai .....

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, Chawri Bazar.

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. - prima facie view that criminal complaint filed by Shri Sandeep Gupta against Shri Subodh Gupta before ACJM, Ghaziabad is on .....

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2014 In appeal no. E/53937-53939/2014 and 54157-54158/2014-EX [DB] - Stay Order No. 51632-51636/2015 - Dated:- 7-5-2015 - Shri Rakesh Kumar, Member (Technical) And Shri S.K. Mohanty, Member (Judicial) For the Petitioner : Shri Pradeep Jain, Advocate For the Respondent : Shr, Ranjan Khanna, DR ORDER Per: Rakesh Kumar The facts leading to filing of these appeals along with stay applications are, in brief, as under: 1.1 M/s. Sandeep Manufacturing Strips, C-23, Tronica City, Loni Ghaziabad (hereinaf .....

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, 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 .....

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upta and (f) factory premises of Mayank, Shivam and Vasudev were searched. In the factory of SMS, certain unaccounted stock of finished goods as well as raw material was found and similarly, in the factory premises of Shivam, Mayank, Vasudev also unaccounted stock of finished goods was found which was placed under seizure. From the residential premises of Shri Subodh Gupta, certain accounts regarding receipts of raw material and dispatch of finished goods, kacha slips and parallel invoices were .....

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4572 driven by one Shri Anil Kumar and accompanied by a labourer of SMS was intercepted by the officers. The vehicle was carrying copper ingots which had been loaded at Binni Ki Bhatti, Mahavir Gali, Mandoli Industrial Area, Delhi and on enquiry by the officers, Shri Anil Kumar, Driver, produced invoices no. 43 and 44 dated 27/7/2010 of M/s. Shri Balaji Udyog, Ghaziabad (SBU) which had been given to him by Shri Subodh Gupta. Shri Anil Kumar informed that copper ingots are meant for to be deliver .....

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abad, that he used to prepare kacha slips for clearance of copper strips/wires; that the resumed parallel invoices reflect the modus operandi of clandestine clearance of unaccounted manufactured goods of SMS-Ghaziabad and similarly, the small spiral bound diaries recovered from his premises contain details of raw material procurement and the quantity of the finished goods manufactured and clearance of finished goods. Shri Subodh Gupta in his statement further stated that the invoices seized from .....

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m 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 .....

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ces were issued: (1) SCN No. DZU/INV/C/CE/175/2010/PART1/1990 DATED 18/4/2012 issued by Additional Director General, Directorate General of Central Excise Intelligence answerable, Commissioner Central Commissionerate for demand of duty of ₹ 2,32,94,419/-, ₹ 2,90,57,862/- and ₹ 41,64,554/- from Mayank, Shivam and Vasudev respectively under proviso to section 11A(1) of Central Excise Act, 1944 along with interest on it under section 11AB and also for imposition of penalty on them .....

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es by them under proviso to section 11A(1) of Central Excise Act, 1944 along with interest on it under section 11AB and also for imposition of penalty on them under section 11AC and imposition of penalty under Rule 26 of the Central Excise Rules, 2002 upon Shri Sandeep Gupta, proprietor of M/s. Sandeep Metal Supply, Shri Pawan Kumar Aggarwal, proprietor of Mayank, Shri Sanjeev Gupta, proprietor of Shivam, Shri Jai Bhagwan authorized person of Vasudev Udyog, Shri Subodh Gupta, Manager, M/s. SMS G .....

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19/-, ₹ 2,90,57,862/- and ₹ 41,64,554/- were confirmed against Mayank, 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 ₹ 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 be .....

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rized person of Vasudev -Rs. 30 lakhs. (iv). Shri Subodh Gupta, Ex-Manager, M/s. SMS-Ghaziabad - ₹ 20 lakhs, (v). Shri Mukesh Chauhan, Ex-Accountant, M/s. SMSGhaziabad- ₹ 10 lakh. 1.8 Against the above order of the Commissioner, these appeals have been filed by M/s. SMS-Ghaziabad, Shri Sandeep Gupta, Shivam, Mayank and Vasudev along with stay applications. 2. Heard both the sides in respect of the stay applications. 3. Shri Pradeep Jain, Advocate, ld. Counsel representing all the app .....

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ep Gupta against Shri Subodh Gupta before the court of ACJM-Ghaziabad and in this regard Honble ACJM-Ghaziabad has issued a summon to Shri Subodh Gupta on 16/11/2013; that till this complaint filed by Shri Sandeep Gupta against Shri Subodh Gupta is decided, no action could be taken by the Department on the basis of any statement of Shri Subodh Gupta or on the basis of documents recovered from the premises of Shri Subodh Gupta, as it is Shri Subodh Gupta who has fabricated those documents to imp .....

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xamination of certain witnesses was fixed, namely, Shri Pawan Kumar Aggarwal proprietor of Mayank, Shri Sanjeev Gupta, proprietor of Shivam, Shri Jai Bhagwan, authorized signatory, Vasudev, was allowed on 19/3/2014, 20/3/2014 and 28/3/2014, the cross-examination of the crucial witness Shri Subodh Gupta was not allowed and abruptly the Commissioner passed the order on 30/5/2014; that absolutely no reason has been given by the Commissioner for disallowing the cross-examination of the crucial witne .....

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f 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 ₹ 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 perta .....

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r may be remanded to the Commissioner for de-novo adjudication after permitting the cross-examination of the various persons as requested by the appellants including Shri Subodh Gupta. 4. Shri Ranjan Khanna, ld. DR, opposed the stay applications by reiterating the findings of the Commissioner in the impugned order and pleaded that the departments case against SMS-Ghaziabad, Mayank, Vasudev and Shivam is not based only on the documents recovered from the premises of Shri Subodh Gupta. He pleaded .....

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ayment of duty. Shri Ranjan Khanna pleaded that though M/s. Shree Balaji Udyog (SBU) is a proprietary concern of Shri Subodh Gupta, the bank account of SBU at Ajmeri Gate Branch of Punjab National Bank had been opened on the instructions of Shri Sandeep Gupta and there are the documents to prove that this account was being operated by Shri Sandeep Gupta. Shri Ranjan Khanna pleaded that though the office of SBU was at Krishna Vihar, Behta Hazipur, Ghaziabad, the account of this firm was opened at .....

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5 from the account no. 0127002100085921 of SBU at Ajmeri Gate Branch of Punjab National Bank and this fact proves beyond doubt that Shri Subodh Gupta was not the real proprietor of SBU and it is Shri Sandeep Gupta, proprietor of SMS-Ghaziabad, who was the real 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, the .....

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MS-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 stock account and several parallel invoices .....

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d wires manufactured by SMS-Ghaziabad were being clandestinely cleared without payment of duty to M/s. Sandeep Metal Supply, Chawri Bazar under parallel invoices, as 195 such parallel invoices have been recovered from the residential premises of Shri Subodh Gupta. He also emphasized that the criminal complaint filed by Shri Sandeep Gupta against Shri Subodh Gupta, M/s. SBU is not a genuine complaint and has been filed by him only to dissociate himself from his Production Manager, Shri Subodh Gup .....

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nterest with equal amount of penalty under section 11AC is a proprietary concern of Shri Sandeep Gupta and is engaged in manufacture of copper wires and strips from copper ingots. M/s. Sandeep Metals Supply, Chawari Bazar Delhi is a trading firm of Shri Sandeep Gupta. M/s. Shri Balaji Udyog-Ghaziabad (SBU) is a proprietor concern of Shri Subodh Gupta. The allegation of the department is that SBU is a defunct firm floated by Shri Sandeep Gupta in the name of Shri Subodh Gupta who is actually his .....

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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 interc .....

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ly cleared consignment of copper ingots from the factory of Mayank. Subsequently, Mohd. Ishraf was also found to be an employee of M/s. SMS-Ghaziabad. Subsequently, statement of Shri Pawan Kumar Aggarwal, proprietor of Mayank was recorded wherein he stated that he was clearing the consignments of copper ingots without any bills and without any payment of duty of SMS-Ghaziabd. Similar statements have been given by Shri Sanjeev Gupta proprietor of Shivam and also by Shri Jai Bhagwan authorized sig .....

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in jail, cash had been withdrawn by Mrs. Shobha Gupta, wife of Shri Sandeep Gupta from this account by three cheques. 7.1. It is also seen that a cheque bearing no. 123354 dated 16/4/2010 issued by M/s. Balaji Metals & Electronics in the favour of SBU was deposited by SBU on 21/4/2010 in the above mentioned branch of Punjab National Bank but on the cheque deposit slip, the telephone no. of SBU was mentioned as 23221250 which is the telephone no. of M/s. Sandeep Metal Supply, Chawri Bazar, w .....

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these evidences indicate that SBU was firm floated by Shri Sandeep Gupta in the name of his employee Shri Subodh Gupta. It is also seen that while goods manufactured by SMS-Ghaziabad were being cleared under parallel invoices without payment of duty to M/s. Sandeep Metal Supply, Chawari Bazar, M/s. Sandeep Metal Supply were showing purchase of the same goods from a number of suppliers namely, M/s. Sai Enterprises, JMD Trading, M/s. Mahalaxmi Agency, M/s. M.K. Traders, M/s. First International Bu .....

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