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2016 (12) TMI 918 - CESTAT NEW DELHI

2016 (12) TMI 918 - CESTAT NEW DELHI - TMI - Cement - clandestine removal - Held that: - We find that there are enough corroborative evidences on record sustaining the charges of clandestine removal against the appellants. These corroborative evidences can be cited as follows :- (i)Cash Books resumed; (ii)Parallel invoices resumed; (iii)Weighment slips resumed; (iv)Registers of parties resumed. - We find that findings given in the impugned order are based on clear cut evidences and, therefor .....

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. Arya M/s Chandra Cement Ltd. and Shri Rajendra Prasad Goyal, Director are in appeal against Commissioner, Jaipur s order dated 19/03/2008 where demand of ₹ 52,96,870/- alongwith interest and penalty of ₹ 53,14,370/- has been confirmed. A penalty of ₹ 5,00,000/- (Rupees Five Lakhs only) has also been imposed on the appellant Shri Rajendra (Prasad) Goyal, Director. 2. Appellants have been represented by Shri Bipin Garg, learned Advocate and the Revenue has been represented by S .....

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ith an intent to evade payment of Central Excise duty and using parallel invoices for clearance of cement without payment of duty (ii) But the fact remains that these registers are consolidated account of the 4 units including the appellants factory. This account was a sort of personal account of Shri Rajendra Prasad Goyal to keep track of the position (Financial) in regard to him of all the units. M/s Chandra Cement Pvt. Ltd., the appellants was also maintaining its separate Cash Book by comput .....

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customers or transporters who transported the cement in the trucks whose registration numbers were dully found recorded in the register. (v) the allegation of clandestine removal of cement amounting to duty of ₹ 28,51,660/- based on Partywise Register cannot be clearly sustained as the same is duplicated from other allegations like on Cash Book, Parallel Invoices and weightment slips of Dharma Kanta . 4.1 The learned Advocate further submits as follows :- (i) The allegation that clinker m .....

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h working and producing cement. (iii) The Commissioner has in para 43 further endeavoured to find support for his findings by stating that the factory of M/s Durga Cement (P) Ltd., Narnaul was not functional for long; their electricity connection was found disconnected when factory was visited by officers of Department on 30/11/99; there was no D.G. set; there was no raw material and finished goods. It is stated that the visit of officers was made in the presence of independent panchas and Shri .....

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support for his observation that the resumed invoices books were parallel invoices of M/s Durga Cement being used for clearances by the appellants M/s Chanra Cement without payment of duty. The fact is that the reported legend was written on blank invoice book by the Nepali chowkidar at the factory gate when the same was brought to the factory for use. He was supposed to write that the books pertained to Doosre Plant Ki Kitab Hai whereas he wrote what is now alleged to be foolproof evidence for .....

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below :- Amount (Rs.) Qty. of Remarks cement (M.T.) (i) 15,52,360/- 7761.8 On basis of Cash Books resumed from appellants factory premises. (ii) 28,51,660/- 8147.6 On basis of Partywise Register (iii) 6,93,000/- 1980.0 On basis of Parallel Invoices of M/s Durga Cement (P) Ltd. Narnaul. (iv) 1,75,000/- 50 On basis of Parallel Invoice of M/s Chandra Cement (P) Ltd. Paniyala (v) 1,99,850/- 571 On basis of Weighment Slips Of Dharam Kanta bearing name of Chandra Cement Ltd. Total 53,14,370/- Central .....

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; (iii) Weighment slips resumed ; (iv) Registers of parties resumed. (i) Cash Books resumed :- In case of common Cash Book, which has been produced as an evidence for evasion of duty by the Department the appellants give the defence that said cash book is a composite document containing the details of the appellant company as well as other three companies. However, a mere argument that said cash books/register also belong to three other units do not prove the truthfulness of the mere statement/ .....

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ustomers or transporters in case of the goods namely cement removed clandestinely by the appellants. (iii) Weighment slips resumed : Appellants argue that their factory namely M/s Durga Cement was in operation, and the Department s allegation that it was closed , is baseless. The appellants argue that the operation of M/s Durga Cement can be confirmed from sales tax assessment for the period 1997-1998, 1998-1999. This argument of the appellants cannot take them very far when the Department durin .....

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tory under the name of M/s Durga Cement (P) Ltd. was non-operational and closed during the said period. (iv) Registers of parties resumed : The appellants argument is that the wordings mentioned on the invoice book No. 3012350 Do number ki hai was written mistakenly by the Nepali chowkidar, and they state that actual words to be written were yeh Doosre Plant Ki Kitab Hai . This assignment cannot take the appellants very far, when Shri Rajendra Goyal, appellant number two, who is also the Directo .....

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der in paras 40, 41, 43 and 45. 40. I also observe that three invoice books of M/s Durga Cement (P) Ltd. Narnaul (their sister unit) were also recovered from the said premises of the assessee and Shri Rajendra Goyal Director revealed and admitted that all the three books containing invoice Nos. 251 to 300, 301 to 350, 351 to 400 (19/09/1999 to 21/10/1999) were being maintained by them as parallel to the invoices issued under Rule 52A of the Central Excise Rules, 1944 and on the invoice book No. .....

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ndra Goyal however stated and assured that, they would pay the Central Excise duty whatever become payable in respect of these clearances i.e. cement cleared against invoices of M/s Durga Cement (P) Ltd., Narnaul. 41. The perusal of the show cause notice, clearly transpires that there is evidence to the effect that the assessee had been purchasing clinker from M/s Shree Cement Ltd., Beawar in the name of their sister concern M/s Durga Cement (P) Ltd., Narnaul. Instead of sending the above clinke .....

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r receipt of clinker and showing production of O.P. Cement in the records of M/s Durga Cement (P) Ltd. Narnaul despite the fact that the unit was lying closed since long. Moreover, their electricity connection was disconnected by DHBVNI on 09/10/97. This fact was also strengthened from the statement tendered under Section 14 of the Central Excise Act, 1944 by Shri Balbir Meghwal, Chowkidar available at the time of visit, by the Anti Evasion Officers on 30/11/99 wherein he categorically disclosed .....

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1998-99 as per details in Annexure F-1 and supported by Cash Book s consolidated entry. This has got no reference of removal of cement from M/s Chandra Cement Ltd. and thus has got no relation to their unit. This argument does not hold water for the reason that from the recovered documents i.e. GR etc. it is proved that the clearance of Cement was effected from the premises of M/s Chandra Cement Ltd., Village Paniyala, as the name and place against the consignor was appearing Paniyala to Delhi. .....

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