TMI Blog2017 (5) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... d not establish the case of the clandestine removal against the appellant company - appeal allowed - decided in favor of appellant. - E/442, 443/10 - A/86732-86733/17/SMB - Dated:- 11-4-2017 - Mr Ramesh Nair, Member (Judicial) Shri. Ashok Singh, Advocate for the Appellants Shri. Sanjay Hasija, Superintendent (A.R.) for the Respondent ORDER These appeals are directed from the Order-in-Appeal passed by the Commissioner(Appeals) whereby Order-in-Original was upheld and the appeal of the appellant was rejected. The case of the department is that appellant have cleared the 187MT of TMT bars to one Broker, Shri. Umesh Modi without payment of duty. Accordingly the demand of duty amounting to ₹ 6,03,857 and equal penalty was confirmed. The penalty of ₹ 1,50,000/- was also imposed on Shri. Mahendra Sohanlal Tank director of appellant company. Charge of the clandestine removal was based on the seized records from Shri. Umesh Modi wherein the details of receipt of clandestinely cleared goods were appearing as detailed below: Sr. No Name of the supplier as entered in the seized records Date from book ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shiva M/s. Shiva Steel Rolling Mills, Nashik Shri. Mintuji 9325064343 6. Munna M/s. Sal Steel, nashik Shri. Munna Seth N9822046293 7. GA M/s. Saptasringi Steel Rolling Mills, Nashik Shri. Mahendra bhai 9822684445 8. Jai Bharat M/s. jai Bharat Steel Rolling Mills, nashik Shri. Manoj Bhai 996022022 9. Shyam M/s. Shree Shyam Rolling Mills, Murbad Shri. Harshad Vora, C/o, M/s. Utkarsh Steel 23423874 10. Shyam Rolling M/s. Shyam Ingots, Silvasa Shri. Akhilesh 9324258112, 26324968 11 Anil Jalna Various Rolling mills based at Jalna Shri. Anil Lingade 9325415276 Shri. Umesh Modi stated that Sr. No.7 of the aforesaid chart name of the supplier indicated as GA is in respect of goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for cross examination of the witnesses such as Shri. Umesh Modi, which was rejected. He placed reliance on the following judgments: (a) Commissioner of Central Excise Ws. Brims Products [MANU/BH/0524/2008] (b) Andaman Timber Industries V/ s. Commissioner of Central Excise, Kolkata - II [MANU/SC/1250/2015] (c) Sakeen Alloys Pvt. Ltd V/s. Commissioner of C. Ex, Ahmedabad [2013 (296) ELT 392 (Tri. Ahmd)] (d) Kiran Nagindas Vora V/ s. Commissioner of Cus (Export), Nhava Sheva [2015 (322) ELT 97 (Born)] (e) Pan Parag India Ltd Ws. Commissioner of Central Excise, Kanpur [2013 (291) ELT 81 (Tri Del)] (f) Arya Fibres Pvt. Ltd V/ s. Commissioner of C.Ex, Ahmedabad - II [2014 (311) ELT 529 (Tri. Ahmd)] (g) Centurian Laboratories V/s. Commissioner of C. Ex, Vadodara [2013 (293) ELT 689 (Tri. Ahmd.) (h) Ncolicc Ltd V/ s, Director of Enforcement [2014(305) ELT 278(DEL)[ (j) Bhor Rubber Factory Vs. Commissioner of Central Excise, Pune-II[2006(198)ELT 549(Tri. Mum)] (k) Jay Bilawani Metal Company Vs. CCE Service Tax, Surat -112014 (309) ELT 698 (Tri. Ahm)] (l) C.C.E. Surat V/s Classic Ind. Ltd T2007 (210 ELT 211. Tri. Ahd)] ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sivaperumal Vs. S. Vishwanathan Or. [ 2014 (1) CTC 447] (q) Hind Hossiery Mills. P.Ltd. Vs. Anand Chemical [ 2001 SSC Online Cal 546)] (r) Anjani Kumar Shah Vs. CC Lucknow [2002 (147) ELT 890 (Tri-Del) 4. I have carefully considered the submissions made by both sides and perused the record. 5. I find that case of the clandestine removal was confirmed by the adjudicating authority and upheld by the Ld. Commissioner(Appeals) on the evidence such as records recovered from the Broker Shri. Umesh Modi, the statements of Shri. Umesh Modi and Shri. Mahendra Tank, director of the appellant company wherein he has accepted the clandestine removal. On careful perusal of the records I find that as regard the record recovered from Shri. Umesh Modi, records shows the name of supplier and the quantity cleared clandestinely by the various companies. As per the said records, in all other entries for the suppliers name, either name of the company or name of the concerned person of the said company is mentioned. Only in the case of entry which was related to the appellant shows name of GA. However, GA neither indicate the name of the factory nor to the peron, therefore from the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeared to be correct for the reason that records is maintained by Shri. Umesh Modi and initial GA mentioned in the records, appellant cannot know whether it indicates clandestine removal of the appellant or some other transaction, for this reason also statement is under serious doubt, hence same cannot be relied upon. Except the above evidences there is no inquiry or investigation carried out in the factory premises of the appellant and no incriminating documents were recovered from the premises of the appellant company. In such a situation whatsoever evidences relied upon by the adjudicating authority for confirmation of demand is not sufficient to hold charge of clandestine removal. The charge of clandestine removal should be established beyond any doubt on the basis of tangible evidences which adjudicating authority failed to prove. I have given my findings on the basis of peculiar facts available in the present case, hence I need not to discuss each and every decision relied upon by the rivals. As per my above discussion, I am of the considered view that department could not establish the case of the clandestine removal against the appellant company. Therefore impugned order r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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