TMI Blog2015 (12) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacturers were raised as defence plea in the course of hearing. But adjudication order primafacie does not bring deprivation of the appellant manufacturers from the course of natural justice. All details of the evidence of the manufacturers and commission agent were threadbare examined granting reasonable opportunity of hearing to them. Since appellants filed their reply to show cause notice that shows that the first course of justice delivery system was followed. None of the appellant disowned the entries recorded in the books of M/s.Gopal Steel speaking against them. They also did not rule out their dealing through the said commission agent. Keeping in view the financial difficulties pleaded by some of the appellants, primafacie case against them, balance of convenience in favour of Revenue, magnitude of evasion done and loss of duty found in adjudication and also following the ratio laid down in the case of Banara Valves Ltd. Vs. Commr. Reported in [2006 (11) TMI 6 - SUPREME COURT OF INDIA], it would be proper to direct pre-deposit of the amounts - partial stay granted. - Excise Appeal No.E/58571,58572 E/58697,58716, 58717, 58783, 58797,58866,58982, 59603/2013-EX[ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustainable being non-speaking. (5) Management of the appellant company was new to the allegation since there was change in management after the investigation was made. But as per terms of acquisition between the parties, present management has defended the allegations made against the predecessor management. Therefore appellant should have been exposed to all materials used against it without delay. (6) When reply to show cause notice was given on 11.02.2013 by the appellant and there were plethora of documents involved, it was not humanly possible to pass adjudication order within one and half month thereof. Accordingly adjudication order passed on 31.03.2013 was with haste and hurry. This proves that there was a total violation of principles of natural justice for which any direction for pre-deposit shall cause prejudice to the interest of the appellant. (7) There was no enquiry made from the appellant nor from the purchaser of the goods to reach to an appropriate conclusion by the learned Adjudicating Authority. Reliance was placed on the decisions of Basudev Garg vs. CC reported in 2013 (294) ELT 353 (Del.) and Arya Abhushan Bhandar vs. UOI reported in 2002 (143 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 the bills were sent in respect of the previous deals. This shows that there were transactions even after September, 2006. 3.2 It was further submission on behalf of the appellant that the defence led by appellant in para 7.5 of the adjudication order was not adverted to by the ld. adjudicating officer and impugned order was passed mechanically. Without any finding on the submissions made by appellant, adjudication resulted in denial of justice. It was also submission of the appellant that records of M/s. Gopal Steel did not provide credible evidence to the department. Burden of proof was not discharged by Revenue. The records which were used against the appellant did not contain any abbreviations which appear in para 2.1 of the adjudication order. Therefore the record of M/s. Gopal Steel used against appellant contrary to law has made the adjudication bad. E/STAY/59328/2013 in E/58697/2013 4. Sri Jitin Singhal ld. Advocate appearing on behalf of Salasar Steel Power Ltd. adopts the argument of Sri Asthana and Sri Bipin Garg. E/S/59359/2013, E/Misc./51707/2014 in E/58717/2013 5. Sri S.P. Sharma, Advocate appearing on behalf of the appellants M/s. Scania St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvoices and the second type of transactions were that goods were cleared against invoices but without declaring proper assessable value therein. To the extent transactions were supported by invoices, considerations were realized by Cheque and the undervalued portion of the invoiced goods came in cash to the manufacturer assesses. Similarly goods without invoices were dealt in cash. These two types of transactions gave rise to the loss of aggregate duty demand of ₹ 4,50,42,905/- caused by the appellants. 8.2 Placing para 5.2 of the adjudication order it was submission by Revenue that Gopal Krishna Aggarwal who was proprietor of M/s. Gopal Steel made his statement on 5 days that is on 08.09.2007, 12.09.2007, 13.09.2007, 24.09.2007 and 23.09.2007 under section 14 of the Central Excise Act 1944 and the depositions made on those days were confessional in nature and recorded without threat pressure, fear or coercion. On no occasion he retracted any of the statements given on the preceding dates. He also explained about implications of abbreviations and figures appearing in the seized records and implications thereof well known to both sides. 8.3 Not only the documentary e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nature of the deal and connection of all parties with M/s. Gopal Steel was revealed from different entries in the seized books and computer out put. Sri Gopal Aggarwal also explained what is called sauda . That represented complete deals between the manufacture and buyer bringing the trail of evidence from origin to destination of the consignments. The records exhibited by Sl. No.79, 80, 62, 20, 69, 21 of Panchnama related to Shri Aggarwal and he did not disown the same. Such documents provided basis of demand exhibiting the figures of the clandestine removals and under valuation of goods made by manufacturers sold through the appellant on commission agency deals. 8.6 Revenue brought out that the loss of duty arose due to clandestine removals without invoices was ₹ 3,60,38,795/- and the undervalued goods resulted in duty evasion of ₹ 90,04,110/- aggregating the loss of duty of ₹ 4,50,42,905/-. This is apparent from the table under para 4 of the adjudication order. 8.7 Shri Dixit also urged that on similar such facts and circumstances Tribunal in the case of Shree Nakoda Ispat Ltd. in stay order No. 50634- 50637/ 2014 dated 22.01.2014 Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raise demand against the appellant manufacturers by the impugned order. The speaking order passed by the ld. Adjudication authority throws light that he has not passed the adjudication order on myth but on truth. 10.5 Prima facie, record revealed that Investigation brought out cogent evident suggesting involvement of the parties in the above evasive practice. Not only book records but also computer printout recovered from M/s. Gopal Steel unerringly brought out the quantum of loss of duty committed by the appellant manufacturers evading duty liability thereon through unaccounted clearances. Those were transacted through the commission agent M/s. Gopal Steel and his record identified buyers of offending goods. They are tabulated in the adjudication order. 10.6. Violation of natural justice and no examination of the consignees and manufacturers were raised as defence plea in the course of hearing. But adjudication order primafacie does not bring deprivation of the appellant manufacturers from the course of natural justice. All details of the evidence of the manufacturers and commission agent were threadbare examined granting reasonable opportunity of hearing to them. Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) (4) (5) (6) (7) 1 8 E/S/59172/13 in E/58571/13 Seleno Steels Ltd. Duty u/s. 11A of Central Excise Act, 1944 Penalty under section 11AC Followed by interest on duty demand 47,56,813 47,56,813 40,00,000 2 6 E/S/59173/13 in E/58572/13 Maa Kali Alloy Udyog Pvt. Ltd. Duty u/s. 11A Penalty under section 11AC Followed by interest on duty demand 41,73,203 41,73,203 30,00,000 3 3 E/S/59328/13 in E/58697/13 Salasar Steel Power Ltd. Duty u/s. 11A Penalty under section 11AC Followed by interest on duty demand 14,86,913 14,86,913 10,00,000 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
