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TMI Blog2016 (4) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... 2005 and thereafter the office was searched on December 6, 2005. In criminating documents were seized under Panchanama. One of the documents recovered was an octroi receipt number 5829 of Municipal Corporation of greater Mumbai dated 30/11/05 which reflected details of goods cleared by appellant vide their invoice numbers 633, 634, 635, 636, 637 and 638. On comparing the quantum and dates mentioned on the invoices with the details reflected on the octroi receipt, it was found that details on both documents were varying. In fact invoice number 634 was supposedly for clearance made for captive consumption. Further during scrutiny the investigation found three invoices bearing same serial number 606 and 2 invoices bearing same serial number, that is, 613. The statement of Mr. D.P. Singh - Director of appellant was taken on 6/12/05 wherein he stated that they had issued the last invoice number 638. On being shown pre-authenticated blank invoices number 641 to 645 and 653 to 657 and was asked about the invoices bearing numbers 639, 640 and 646 to 652, he replied that the said invoices were missing. Further scrutiny of documents revealed that V. Trans and Lalji Mulji transport, were the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... going through the above Mr. Ojha agreed with the contents that the said materials as mentioned in the lorry receipts were received by them under the cover of Central Excise invoices. However the Excise invoices were returned back to the appellant. On being shown copies of Central Excise invoices which were mentioned in the lorry receipts, Mr. Ojha admitted that some of the invoices were in the name of other customers, even though they had received the goods. He further stated that their average monthly purchases from the appellant was Rs. 8-10 lakhs. Earlier they were trading in the name and style of M/s. Blue spot agencies (Proprietory Mr. Manoj Ojha). In the Further statement recorded by the investigation of Mr. Ojha he confirmed the earlier statement and also produced a statement comprising of 2 pages of LM transport which reflected the materials received by them from the appellant. Except about 4 entries, he confirmed, they received the goods from the appellant. 3. The investigation also recorded the statement of Anil P Mishra, the Branch Manager of V. Trans Ltd.,Vijay Bhanushali, Branch Manager of M/s Lalji Mulji Transport Ltd., Dhirajlal Amritlal Modi, Manger of the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the goods seized, valued at Rs. 2,35,650/- from the premises of Krishna Marketing, Ahmedabad and penalty was also proposed under Rule 25 on Krishna Marketing Blue Spot Agencies, Ahmedabad and Jay Enterprises, Rajkot. 3.3 The appellant contested the show-cause notice by filing interim reply and also reserving their right to file final reply after receipt of copies of relied upon documents vide their letter dated 02.01.2007, also attached comprehensive list of the documents required by them to file proper reply to the show-cause notice. In response, the Superintendent by letter dated 22.1.2007 informed that the documents have already been supplied along with show-cause notice. Further, informed that the date of hearing is fixed on 16.4.2007. Although the appellant filed an interim reply dated 6.2.2007, they reiterated their request for relied upon documents categorically stating therein that it is only an interim reply and final reply shall be submitted only after receipt of a copy of the documents sought by them. Further, cross-examination of 25 persons including Central Excise Officers was prayed for. The request for relied upon documents was again reiterated by letter date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng, Rs. 1.5 lakhs under Rule 25 read with Section 11AC each on Krishna Marketing, Blue Spot Agency and Jay Enterprises). IN the said order, no discussion was made regarding the request of the appellant for cross-examination of witnesses. 3.5 Being aggrieved, the appellant had challenged the Order-in-Original before the Commissioner (Appeals), who was pleased to dismiss the appeal by his order dated 5.9.2008 for non-compliance of pre-deposit ordered. Being aggrieved, the appellant filed appeal before this Tribunal mainly on the ground of principle of violation of natural justice as the appellants were not given copy of documents relied upon by the Revenue nor had permitted cross-examination leading to miscarriage of justice, there being no proper opportunity of hearing made available. This Tribunal vide its final order No. A/254-259/09/EB/C-I dated 11.8.2009 directed the appellant Icconol Petroleum to make pre-deposit of Rs. 20 lakhs towards duty and also furnish a Bank Guarantee of Rs. 5 lakhs within a period of four weeks and subject to that remanded the case back to the adjudicating authority with respect to all the parties with direction to furnish all the documents that are re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... important, without which the appellants are unable to defend their case. This Tribunal takes notice, that the adjudicating authority in par 23.1 (P) has taken notice of the various letters by which documents were requested for, including letter dated 21.1.2012 filed by the appellant after the order of the Tribunal. In the circumstances, the appellant urged that no adverse inference can be drawn without supply of the documents relied upon. It was further contended that the case of the Revenue is mainly based on lorry receipt recovered from the transporters and recovery of few bills in the name of M/s Gurukrupa Marketing, Raipur, M/s Manoj Agro Traders, Gwalior, M/s Raj Trading Company, UP and M/s Kohli Auto, Delhi for commercial reasons. 3.10 It is further contended that none of the transporters have said that the goods have been cleared without payment of excise duty. It was further contended that the sale proceeds from Krishna Marketing and Jay Enterprises have been properly recorded in the Books of Account of the appellant maintained in the ordinary course of business. In the lorry receipt from the Transporter, only invoice no. are mentioned and on the basis of the same, the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that in the course of cross-examination, a common question was asked whether M/s ICCONOL Petroleum Pvt. Ltd. ever asked them to carry/transport goods without invoice and obvious reply (No) was given by the witnesses as per their mutual convenience. It was further observed that invoice generated were used and thereafter returned to the appellant and destroyed and subsequently parallel no. of invoices were generated in a clandestine manner, and no manufacturer will preserve the two set of invoices. In such a case, only few invoices which was recovered are available, which were supplied to the appellant on 20.12.2006. It was further observed that the staff members of the appellant have confirmed the generation of parallel set of invoices, which are not retracted. 3.13 As regards the denial by the transporter that they were never asked to transport the goods without invoices, it was concluded that it does not mean that there was invoice with the consignment and that invoice no. with details of goods including value is mentioned in the lorry receipt, the same reached to the main (designated) buyer, and on completion of transportation, the invoices were returned/destroyed. It was thu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken from the consignment notes issued by the transporting company for the purpose of calculation of the duty appears to be total invoice value inclusive of Assessable Value, Central Excise duty, other elements etc. The noticee's contention in the matter appears to be correct. Total value of clearance in annexure A-1 & A-2 of the show-cause notice is Rs. 3,03,11,519/-. Considering the rate of duty as 16.32% including Education Cess, the assessable value comes to Rs. 2,60,58,734/-, taking the total invoice value as cum duty price. On this revised assessable value the Central Excise duty amount comes to Rs. 42,52,785/-, which is recoverable from the noticee. (b) Annexure 2 to the written submission filed by the notice: Noticee's contention is not correct and not acceptable. The value of Rs. 39,05,293/- is correctly shown as per Consignment Note NO. 1327133 and the said amount is already appearing at Sr. No. 43 of the Annexure A-1 of the impugned show-cause notice dated 08.12.2006. There is no evidence submitted by the notice to substantiate their claim. They did not discharge their burden satisfactorily to claim concession. (c) Annexure 3 to the written submission fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals), who vide the impugned order dated 27.12.2012 dismissed the appeal, upholding the Order-in-Original. 3.20 Being aggrieved, with the dismissal of appeal, the appellants are before this Tribunal. 4. It is urged by the learned Counsel for the appellant that the main allegation of the Revenue is that the appellant have issued parallel invoices and have cleared excisable goods without payment of appropriate duty. It is stated that it is not the case that they have not paid the duty of excise on the goods removed. The whole demand is based on assumption and presumption in view of some parallel no. of invoices, which is a clerical error. It is further vehemently urged that there is miscarriage of justice as there have been violation of the principles of natural justice for the reason that the appellant was not provided copy of all the relied upon documents as well as non-relied upon documents. During the hearing held on 18.9.2014, this Tribunal appreciated that all the relevant documents have not been supplied to the appellant and as such directed the appellant to give a list of all the documents, a copy of which have not been provided to them. And accordingly directed the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcept 8 invoices, the balance demand is fit to be set aside. Further, attention was drawn that some of the consignments at Sr. No. 1,9,27, 28 and 46 alleged to have been cleared as appearing in annexure A1-A2 to the show-cause notice, are in fact consignments cleared by other companies and not by the appellants and the same was demonstrated by drawing attention to the lorry receipt at the time of hearing. Further, the appellant also demonstrated that at one instance, Sr. No. 1 Annexure A1 to show-cause notice, the rate per kg. applied in one consignment is inflated almost 10 times the average per kg price of the goods manufactured and cleared by the appellant. In the facts and circumstances, the failure of the Revenue to produce a copy of the invoices other than 8 invoices, the balance demand raised is only on basis of assumption and presumption, is fit to be set aside. 5.1 The allegation of the Revenue that parallel set of invoices was used to deliver the goods to the customers of the appellant in northern part of India is also based on assumption and presumption as the same is not corroborated by any of the evidence such as movement of goods nor any such duplicate invoice was br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17 along with interest. It is further seen from the record that other than the 8 invoices, there is no evidence produced by the Revenue in support of the allegation of clandestine removal as alleged on the basis of parallel invoices. It is settled law that clandestine clearance as alleged by Revenue, the onus is on the Revenue to produce copies of the invoices etc. in support of its allegation. In the absence of such parallel invoices, the allegation cannot survive. Further, I find that the Revenue have not brought anything on record to support any unaccounted acquisition/procurement of inputs(raw materials). Rather the inputs of the appellant are acquired from the PSU and the same are duly accounted for and duty paid. Thus, it appears that the Revenue have made out a half baked case of clandestine removal and the same is not sufficient save and except the 8 parallel invoices as noticed herein above and accepted by the appellant. Further, it is settled law that a confessional statement cannot be the sole basis for establishing clandestine clearance in absence of other corroborative evidence. The duty on the value of clandestine clearance of Rs. 7,31,140.17 have been worked out by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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