TMI Blog2017 (3) TMI 999X X X X Extracts X X X X X X X X Extracts X X X X ..... in facilitation of evasion of duty and wrong availment of Modvat/Cenvat credit by the appellants, namely, Mittal Overseas and A.S. Overseas. - the penalty imposed by the impugned order on the appellant Shri Sandeep Mittal of ₹ 10, 00,000/- (Rs. Ten lakh) is reduced to ₹ 1,00,000/- (Rs. One lakh only), when the appellant namely M/s Mittal Overseas, New Delhi and M/s A.S. Overseas, where Shri Sandeep Mittal is proprietor and active partner, have been imposed equivalent penalties. Appeal allowed - decided partly in favor of one of the appellant by reducing penalty. - E/1390, 1391 &1392/2007-EX[DB] - A/52102-52104/2017-EX[DB] - Dated:- 3-3-2017 - Mr. Dr. Satish Chandra, President And Mr. Ashok K. Arya, Member (Technical) Sh. Sh. A.K. Jain, Ld. Advocate for the appellant Sh. Sh. G.R. Singh, Ld. AR for the respondent ORDER Per Ashok K. Arya 1. The appellant namely Mittal Overseas(MO), Sh. Sandeep Mittal, Proprietor and A.S. Overseas (ASO) are in appeal against common order in original dated 26.02.2007 passed by Commissioner Central Excise, Delhi. Commissioner in the impugned order inter alia confirms the demand of Central Excise duty amounting to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corded in which he owned as well as clarified the entries from his firm s seized records. v. However without disclosing these statements of Manish Mittal, a demand SCN was issued treating the entries of 10,91,483/- kgs (and which are in fact 2,88,163.370 kgs as certified by CA) in the records seized from Manish Mittal (owner of Durga Alloys) as being the clearances of zinc alloy ingots allegedly made from the factory of MO. vi. On adjudication after the remand by the Tribunal, duty and penalty amounting to ₹ 1,35,42,251/- each was confirmed against MO by the CCE, apart from confiscating the seized raw materials (which the CE law does not permit) and the finished goods on the basis of retracted confessional statements of Sandeep Mittal, completely ignoring the absence of any allegation/evidence of MO having obtained any unaccounted huge quantities of raw materials (14,50,500/- kgs. of zinc, copper, aluminum, and 4,36,500/- kgs. of coke) and MO s having consumed diesel/electricity necessarily required for the manufacture of the alleged clandestine removals by MO, the capacity report given by an independent Chartered Engineer alongwith his affidavit, and also the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s Mittal Overseas and is also a partner in appellant no. 2, M/s A.S. Overseas. We shall discuss below the issues concerning these three appellants. 5.2 M/s Mittal Overseas (MO) : the Revenue s main charge against M/s Mittal Overseas (MO) is clandestine removal for which the liability of C.Excise Duty ₹ 1,35,42,241/- exceeding the limit of SSI exemption benefit under Notification 8/2000 dated 01/2000 has been confirmed. The main evidence cited by the Revenue in support to sustain the charges against the appellant are as follows: i. The statement of Shri Sandeep Kumar Mittal, proprietor of Mittal Overseas. ii. Entries in the loose papers and other records recovered from residential premises of Shri Manish Mittal and Shri Sandeep Mittal. 5.3 M/s A.S. Overseas (ASO): the charge against M/s ASO is taking modvat/cenvat credit of ₹ 39,17,367/- without receiving corresponding inputs. Main evidences cited by the Revenue to support the charge against M/s A.S. Overseas are: i. Statement of Shri Sandeep Kumar Mittal, the partner of M/s A. S. Ovearseas and proprietor of Mittal Overseas inter alia saying that there was no provision of electricity, water and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of manufacturing conducted by the said firm. In this regard we are in agreement with the findings of the Commissioner given in the impugned order in para 45 as under: 45. I have seen the Panchnama dated 09.11.2000 drawn at the premises of ASO. In the said Panchnama it has clearly been mentioned that the factory was closed. The locks were opened by Shri Sandeep Mittal. It is further recorded therein that he himself informed the visiting officers and the Panch Witnesses that no manufacturing activity was being carried out; that the furnace and dies were rusted; there was no stock of raw materials or finished goods. There was no office or furniture in the premises. The Panchnama has also been signed by Shri Sandeep Mittal. Further, these facts were duly corroborated by Shri Sandeep Mittal in his statement dated 09.11.2000. He has admitted that the factory of ASO was not functioning from April, 2000. He also stated that besides himself and Shri Rajesh Goyal, another partner in the firm, there was no other employee. This Statement was recorded at his premises and was not retracted for several days. The first retraction, as submitted by Shri Sandeep Mittal in their defence reply, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by him. Such option shall be exercised before effecting his first clearances at the normal rate of duty. Such option shall not be withdrawn during the remaining part of the financial year. As is evident from the foregoing ASO did not manufacture the goods at their premises and instead the same were manufactured at the premises of MO. The goods have not been manufactured as a matter of job work and as discussed herein above have been manufactured and removed clandestinely without payment of duty. Since the goods were manufactured at the premises of MO the duty liability is to be borne by them. In view of the fact that ASO had exercised the option supra the exemption on these goods is not admissible in view of overall scheme and conditions of the exemption Notification supra. 7.2 The impugned order further in case of the appellants M/s Mittal Overseas and M/s AMO, in paras 67 68, based on the evidences inter alia observes as under: 67. In view of the above, I come to the finding that the said M/s Mittal Overseas and M/s A.S. Overseas indulged in clandestine clearances and evaded payment of Central Excise duty as alleged in the Show Cause Notice. The findings for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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