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TMI Blog2017 (3) TMI 839X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appellant indulged in clandestine removal of goods under the guise of "second sales". As per orders procured by brokers, manufacturer appellant supplied goods to Kerala buyers under parallel set of invoices upto weighbridge. Arrangement was made with bill traders to raise second sales invoices in favour of the Kerala buyers which accompanied goods to their destination. Soon after the goods are received, the parallel invoices vanished. Further allegation of Revenue is that payments were realized by the bill traders who issued invoices to the buyers. Upon receipt of the payments from the buyers, the cheques were deposited in their bank account and from that account, money was withdrawn for settling the commission bills of bill traders as well as brokers. Cash was given to the manufacturer appellant out of such withdrawals. Such modus operandi was examined by the adjudicating authority at pages 24 & 25 of the adjudication order. 4. Revenue's further allegation is that the goods were sent for weighment to KRT Weigh Bridge and weigh bridge slips recovered were evidence against appellants as to the transportation of goods by Kerala buyers. Department provided relevant evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity. A summary of contentions of the appellant are as follows: * Total allegation relies on weighment bridge slips which were not recovered from their factory premises * No documents were recovered from the appellant's premises * Persons who signed the weighment slips were only casuals/amolies who help lorry driver at time of loading/unloading * No statements were recorded from the persons who signed the weighment slips * Weighment slips do not show any details of party name, from where it has come and where it has gone nor the nomenclature of the goods weighed was mentioned. * No evidence has been brought on record for the purchase of raw materials/consumption for the alleged manufacture and clearance of 4875.590 MTs * No evidence adduced for movement of goods from Tamil Nadu to Kerala * No statements taken from finished goods purchasers of Kerala * No direct evidence of payments received from Kerala buyers * Only one year's power consumption has been compared. Power consumption cannot be a standard parameter since production will vary depending on quality of scrap, power shutdowns, age of machinery, etc. * Out of 553 weighment slips, all have not been id ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of adjudication. Record reveals that consumption of electricity was not the only criteria adopted to determine the production of the goods by the appellant. However, there was rise in consumption of electricity during the years 1994-95 and 1995-96 possibly giving rise to a higher production. There was no reasons stated by the appellant for the rise of such consumption of power. However, this was not the only factor which gave rise to the adjudication when there are other cogent and credible evidences demonstrating that a racket was involved to make clearance of the goods unaccounted. When the chain of evidence came to the notice of the investigation, it was looked into that and found that unaccounted manufactured goods made by the appellant were channelized to buyers in Kerala through mediators, brokers and traders. 13. Contention of the manufacturer appellant that no documents were recovered from their premises and no evidence has been brought on record as to unaccounted purchase of raw materials/consumption, etc., is of no consequence since negative evidence cannot be demanded by the person charged of an offence. Investigation not only recorded documentary evidence but also ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e transaction was arranged. VI-BROKER a) Received the Cheques/DD b) Deposits them in Bank gets realization in cash c) Gives the commission due to the Bill traders who lent their bills. d) Deducts broker commission and hand over the balance in cash to the manufacturer. VII-MAIVUFACGTURER Collects the net sales proceeds in cash from the Broker after deduction of Bill trader's and broker's commission. 15. Ld. adjudicating authority in Paras 42 and 43 of the impugned order has reached to an objective conclusion analyzing evidence as under: "42. To sum up, I find from the above that in the instant case, Nav Steel had procured raw materials without bills. They had not accounted such purchases and had manufactured re-rollable goods from the said unaccounted raw materials. i.e., they had suppressed the purchase of raw materials as well as production. They had cleared he said unaccounted production under parallel set of (fictitious) Central Excise invoices which accompanied the goods only upto the weighbridge or upto the transporter's premises, were subsequently returned to the factory and destroyed by Nav Steel. They associated themselves with the transport of the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnal relatable evidences, they are perfectly reliable and cognizable. Therefore, I do not find any justification or merit in the argument of Nav Steel that the demand based on the statements of some brokers and bill traders were not supported by other direct and relatable evidences and hence not reliable. When Nav Steel had consciously and meticulously destroyed all the evidences that would be normally available while indulging in such clandestine activities they cannot now find fault with the department for its inability to produce such destroyed or suppressed evidences. The investigating officers are perfectly correct in constructing the case with the related external evidences recovered from the bill traders, brokers and Kerala buyers." 16. Appellants have contended before us that investigation was faulty and that there is no credibility in the evidences and conclusions of the adjudicating authority. We do not find any merit in his contention. In our opinion, the investigation has more than adequately established the questionable modus operandi adopted by the appellants. We further find that the adjudicating authority has analytically and objectively dealt with the matter at ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llector of Customs Madras and others Vs. D Bhoormull [1983(13)ELT 1546 (SC)], Hon Apex Court held that the department is not required to prove its case with mathematical precision in the following language: "It cannot be disputed that in, proceeding for imposing penalties. under Clause (8) of S.167 to which s. 178-A-does not apply, the, burden of proving that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in all criminal or quasi-criminal proceedings, where there is no statutory provision to the contrary. But in appreciating its scope and the nature of the onus cast by it, we must pay due regard to other kindred principles, no less fundamental, of universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and-as Prof. Brett felicitously puts it all exactness is a fake" El Dorado of absolute proof being unattainable, the law accepts for it, probability as a working substitute in this work-a-day world. The law does not require the prosecution to prove the impossible. All tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods to the buyers end and payment for the same would be received in cash from the brokers. Shri R. Murali and Shri G.P.V. Rajasekeran are the brokers, who acted in liaison with Shri Umesh Madan to clear the finished goods clandestinely, without payment of duty, under kachcha bill/second sales bills from bill traders and as such they have consciously assisted M/s. Nav Steel's and Shri Umesh Madan to carry out their deplorable fraudulent activities. So also, the bill traders, S/Shri. Chander Sekhar Sharma, Jagdish Rai Bansal, Ravi Kant Sharma, Ranjit Kumar Ojha and Sanjay Ojha, had lent their bills to be misused by M/s. Nav Steels. It has been sufficiently proved that these bill traders were facilitators of clandestine removal of the goods without making any purchase thereof from M/s. Nav Steel. They were conduits for funneling the sales proceeds of clandestinely removed goods received from the Kerala buyers to M/s. Nav Steel/Shri Umesh Madan after deducting their commissions. 18. The Tribunal, in the case of K.l. International Ltd Versus Commissioner of Custom, Chennai {2012 (2) ECS (126 ) (Tri-Chen)}, explained what is fraud in the following language:- "8.1 It is a fraud in l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant was made following a pre-meditated design. Both documentary and oral evidence gathered demonstrated scientific evasive method followed by the racket to cause subterfuge to Revenue. Documents recovered from the witnesses including the Kerala buyers proved the ill intent of appellant manufacturer and that remained intact, proving against appellant. Clandestinely removed goods were cleared under cover of dummy invoices to Bill traders/brokers and the latter receiving payments thereof in their name by demand drafts were encashed and amount in cash handed over to the appellant manufacturer after deducting their commission. They all colluded to the detriment of Revenue. 20. On the facts and circumstances of the case, there appears no substance and merit in these appeals. Appellants have not come out with clean hands to demand justice. They defrauded Revenue. The manufacturer led by the mastermind Partner Shri Umesh Madan, and the beneficiaries of the fraud do not deserve any leniency, committing breach of law. Even the bill traders/ brokers, S/Shri R Murali, G.P.V. Rajasekaran, Chander Sekhar Sharma, Jagdish Rai Bansal, Ravi Kant Sharma, R. Sanjay Ojha, and Ranjit Kumar Ojha being ..... X X X X Extracts X X X X X X X X Extracts X X X X
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