9911796707
TMI Blog2015 (11) TMI 1475X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar, JCDR ORDER PER: RAKESH KUMAR The facts leading to filing of these appeals and stay applications are, in brief, as under:- 1.1 The main appellant M/s.HVR Industries Pvt. Ltd., 59/20 Saidpur, Sonepat (hereinafter referred to as M/s. HVRI) is a private limited company with Shri Manoj Bansal and Shri Vikram Bansal as Directors. The factory located at Saidpur Industrial Area, Saidpur, District Sonepat, Haryana is engaged in manufacture of lead from lead scrap and lead products like litharge, red lead, grey oxide etc. For manufacture of lead products, HVRI in addition to making lead ingots from lead scrap in their factory also imported the lead ingots and procured the same form other sources also. Prior to May 2010, M/s. H.R. Enterprises (hereinafter referred to as HRE) were owners of this factory which was a proprietorship concern of Shri Manoj Bansal. Shri Dinesh Bansal is the brother of Shri Manoj Bansal. Shri Manoj Bansal, Shri Vikram Bansal and Shri Dinesh Bansal stay in residential premises at D-76, New Multan Nagar, Delhi at different floors. M/s.Indian Steel Corporation (hereinafter referred to as ISC) is a proprietorship concern of Shri Manoj Bansal and it has three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e with Shri Vikram Bansal and Shri Manoj Bansal whose statements were recorded under section 14 of the Central Excise Act, 1944. Besides this, enquiry was made with the Proprietor/partners/ Directors of customer firm/Companies mentioned above. On the basis of the seized records mentioned above recovered from the common residential premises of Shri Bansal Brothers at D-76, New Multan Nagar, Delhi and from the factory premises of ISC and on enquiry with Bansal brothers and the customers mentioned above, the investigating officers were of the view that during the period from August, 2007 to November, 2010, HVRI and earlier the HRE HVRI had cleared huge quantity of lead products in a clandestine manner without payment of duty. It appeared that the duty evaded during the period from August, 2007 to November 2010 was Rs. 6,37,35,488/- This duty demand is based on - (a) Kachcha parchis recovered from the residential premises at D-76, New Multan Nagar, Delhi, (b) The entries in the stock out statements recovered from the residential premises at D-76, New Mulan Nagar, Delhi, (c) Kachcha parchis seized from the factory premises of ISC which appeared to be in respect of dispatches of lead p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Bansal, Sh. Manoj Bansal and Shri Dinesh Bansal, and penalty of the following amounts was imposed on M/s.Ride Energy Control Pvt. Ltd., Shri Narender Kumar Sharma, Director, M/s.Ride Energy Control Pvt. Ltd.; M/s. Tanwar Rajput and Co. and Shri Ramanand Agarwal, Partner of M/s. Tanwar Rajput & Co., M/s.Kaveri Power Tech., M/s. Arora Enterprises, M/s. Leekha Chemical Pvt. Ltd. and its Director Shri Ravi Leekha and Shri Jagjeet Singh Saini as under:- (a) M/s. Ride Energy Control Pvt. Ltd. - Rs. 1.00 Lakh (b) Shri. Narender Kumar Sharma, Director of M/s.Ride Energy Control System Pvt. Ltd. - Rs. 50,000/- (c) Tanwar Rajput & Co. - Rs. 1.00 Lakh (d) Ramanand Agarwal, Managing Partner of M/s.Tawar Rajput & Co. - Rs. 50,000/- (e) M/s.Leekha Chemical Pvt. Ltd. - Rs. 1.00 Lakhs (f) Shri Ravi Leekha, Director of M/s.Leekha Chemical Pvt. Ltd. - Rs. 50,000/- (g) Mr.Jagjeet Singh Sahni, Proprietor of M/s. J.S. Saini Sons Energy System - Rs. 50,000/- (h) M/s.Arora Enterprises - Rs. 50,000/- (i) M/s.Kaveri Power Tech - Rs. 50,000/- 1.6. Against the above order of the Commissioner, these appeals have been filed alon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hcha parchis and other documents on the basis of which the duty demand has been calculated, the appellant had no opportunity to rebut the departments allegation that these document pertained to the clearances made from HRE/HVRI, that though the department relies upon the statements of certain customers in support of its allegation that the consignments received by them had originated from HVRI/HRE, the appellants request for Cross-examination of those persons has been rejected by the Commissioner and the Cross-examination have not been allowed, that in view of the provisions of section 9D (2) read with Section 9 D (1) of Central Excise Act, 1944 and the judgment of Honble Delhi High Court in the case of J & K Cigarettes vs. CCE, reported in 2009 (242) ELT-189 (Del.) the cross examination of the person whose statement has been relied upon by the department in support of its allegation of duty evasion against an assessee is a must, that the impugned order thus, has been passed in gross violation of principles of natural justice, that the HVRI / HRE have no capacity manufacture the quantity of the lead products during the period of dispute which is alleged to have been manufactured ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis of which the duty is being demanded from HRE/HVRI have remarks indicating that supply is from Saidpur, that the factory of HRE/HVRI is located in Saidpur, village of Distt. Sonepat and therefore, when the Kachcha parchis have remark indicating the supply is from 'Saidpur', it has to be presumed that the Kachcha parchis indicating clearance from HRE/HVRI located at 'Saidpur' Village, Distt. Sonepat, that the details given in the Kachcha parchis are the date of sale, name of the customer, number of bags and the truck number in which the goods were dispatched, that in respect of a number of Kachcha parchis, the details mentioned therein match fully with the duty paid invoices issued by HRE/HVRI, which indicates that these Kachcha parchis indicating supplies having been made from saidpur pertain to HRE/HVRI, that for the purpose of quantification of duty demand the Kachcha parchis whose details match with the duty paid invoices issued by HRE/HVRI had not been included, that details of such Kachcha parchis are given in Annexure-B to the show cause notice, that in respect of a some Kachcha purchis all the details except the quantity of the goods sold matches but the quantity of good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case against HRE/HVRI is based on the documents recovered from the residential as well as factory premises of Shri Manoj Bansal and Vikram Bansal, the appellant cannot be said to have prima-facie case in their favour and, hence, this is not the case for waiver from the requirement of pre-deposit. 5. Shri Prabhat Kumar, Advocate, the ld. Counsel for the appellant, in rejoinder pleaded that though the duty demand against HRE/HVRI has been calculated on the basis of Kachcha parchis, loose papers and the registers recovered from the residential premises of Shri Vikram Bansal and Manoj Bansal and the factory premises of ISC, Delhi and according to the Department all the Kachcha parchis have remarks indicating the dispatches of the goods mentioned therein having been made from 'Saidpur', except for a few Kachcha parchis mentioned against Sl.No.60 to 76 of the list of the relied upon documents enclosed with the SCN, the remaining Kachcha parchis and other documents have not been supplied to the appellant, that according to him only a few Kachcha parchis have remarks indicating the clearance having been made from Saidpur factory and other Kachcha parchis do not have any such remarks and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emand is based on (a) Kachcha parchis recovered from the common residential premises of Manoj Bansal and Vikram Bansal, Directors of HRE/HVRI located at D-76, New Multan Nagar, Delhi, (b) some other records like loose papers, registers with some entries under the heading stock-out recovered from the above mentioned residential premises of Shri Manoj Bansal and Shri Vikram Bansal; (c) Kachcha Parchis recovered from the factory premises in Delhi of ISC whose proprietor is Shri Manoj Bansal and (d) in-stock register seized from the factory premises of ISC at Delhi. According to the Department, all the Kachcha parchis mentioned in Annexure A, B, C, and E to the show cause notice have remarks indicating that supplies are from Saidpur. It is also the Departments contention that the details mentioned in these Kachcha parchis are the date of dispatch, customers name, the quantity sold in terms of number of bags and the registration number of transport vehicle in which the goods sold were dispatched and in a number of cases these details matched with the duty paid invoices issued by HRE/HVRI and this fact is not disputed. According to department these facts indicate that these Kac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kachcha parchis being higher than the quantity mentioned in the invoices, has also not been disputed. Therefore, there is some substance in the Department's allegation that the Kachcha parchis whose details are given in Annexure A, B & C to the show cause notice pertaine to the clearances made from HRE/HVRI. Besides this, we also find in respect of some of the entries mentioned under the head stock out in the loose papers/registers recovered from the residential premises of Bansal Brothers, the details of the clearances tally with the details of the duty paid invoices and Kachcha parchis and therefore, prima facie, the entries under stock out heading also pertains to clearance from HRE/HVRI. In view of this factual matrix, notwithstanding the fact that all the Kachcha parchis and the documents on the basis of which the duty demand has been quantified have not been supplied to the appellant and the cross-examination of the customers whose statement has been relied upon has not been allowed and as such there appears to be violation of the principles of the natural justice, the order as such cannot be said to be totally unsustainable, and in any case there would be some duty demand ag ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
