TMI Blog2017 (11) TMI 1102X X X X Extracts X X X X X X X X Extracts X X X X ..... . S. Jhaveri And Vijay Kumar Vyas, JJ. For the Appellant : Mr. Anurag Kalavatia For the Respondent : Mr. Sameer Jain, Mr. Prateek Kasliwal, Mr. Prateek Kedawat, Ms. Meenal Ghiya for Mr. R.B.Mathur JUDGMENT 1. Since all these appeals arise out of the same order, they are being decided by this common order. 2. By way of these appeals, the appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has allowed the appeal of the assessee. 3. This Court while admitting the D.B. Excise Appeal No.19/2010 on 29.09.2010, framed the following substantial questions of law:- 1. What is the extent of burden required to be discharged by the Department in order to establish clandestine removal of goods by the Respondents? 2. Whether statement recorded under Section 14 of the Central Excise Act Constitutes admission on the part of the respondent as to the clandestine removal of goods and whether such statements ought to have been totally ignored in the absence of cross examination of the witnesses. 4. This Court while admitting the D.B. Excise Appeal No.20/2010 on 08.04.2013, framed the following substantial questions of law:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst all the appellants and the appeals of the appellants are allowed with consequential relief as per law. 9. In our considered view, Tribunal seriously committed an error in not reversing the finding at Para-9 of the order of the Commissioner s (Excise) which reads as under:- 9. I have carefully gone through the case records, contents of the show cause notice issued to the assessee and others, written submission filed by the assessee in their defence, case laws cited by them and arguments made during the course of personal hearing- 9.1 While examining the assessee's contention that in the process of conversation of hot rolled products of chapter 7606 of the Central Excise Traiff Act, 1985 to the products of the same heading by cold rolled method no new product different than the raw material emerges hence the said process of conversation of hot rolled product into cold rolled product is not an excisable process and no duty is leviable on the end product obtained by the said process . I find that- (I) According ot Section 2(f) of the central Excise Act, 1944, the word manufactured includes Any process incidental or ancillary to the completion of a man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies contained in the impugned note books which have been presumed to be entries of clandestine removal were actually related to weighment to goods outside the factory at various intermediate stages (WIP). I find it unacceptable in view of the facts that - (I) Shri Sudershan Rout. Despatch Clerk of the assessee unit in his statement dated 19.02.2000 has admitted that the impugned note books contained details of material manufactured and cleared by them which was further corroborated by the facts stated by Shri L.K.Jha and Shri Rajesh Soni in their respective statements. (ii) Statement of Shri R.K. Sharma dated 20.2.2000, stating that the entries contained in the resumed note book pertained to weighment got done to calculate the annealing cycle or got done by the production department while transferring the material from one department to another and also that they had inadequate weighing facility, in their factory is not truthful. The explanation submitted by him is not supported by any document/evidence Shri Sudershan Rout in their respective statements. Besides this even while Transport Co., by the employees of the assessee were station outside Bhiwadi and thus it is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoices were issued by them; that, entries appearing at page No. 34, 49 50 of document No. 2 were the repeatition of the entries. The also proves that the above said resumed note books contained details of clearances effected by the assessee. (v) Following follow-up reports receives from various buyers further corroborate that details contained in the impugned note books and tabulated in Annexure A,B and D pertains to the raw material received and excisable goods cleared by the assessee. (a) The follow up report received from the Assistant Commissioner, Central Excise MODv, Janakpuri, New Delhi under letter C. No. v (15)39/MOD V/Prev/Eng./5/99/2038 dated 03.03.2000 indicates that M/s Capseals, A-42, Mahipalpur, New Delhi had received seven consignments from the assessee the details of the consignments received under invoice No. 40/16.09.99; that of S. No. 177, 201, 204 and 297 respectively of Annexure B where the date, name of the party and quantity is same. Also the vehicle number in the voice No. 87/03.02.2000 is tallying with S. No. 87 of Annexure A . (b) The follow up report received from the Assistant Commissioner, Central Excise Division, Ambala u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entries contains name of the supplier, the quantity and figure showing amount in rupees equal to the Kg. Raw material. All details of receipt of raw material contained in this note book are tabulated in the chart marked as Annexure C . Some entries of this chart are tallying with the raw material receipts from M/s Rakhi Agencies e.g. entry No. 35,37,55,56,76,90 are accounted for in the raw material register maintained in the RG- 23A Pt.I register. After considering these genuine receipts of raw material, I find that unaccounted receipts of the raw material comes to the tune of 7,45,993 Kg. (vi) From the Grs pertaining to the assessee it was observed that while booking the vehicle, the destination as told to the transporter namely M/s Baba Transport Co. by the employees of the assessee were stations other than Bhiwadi which shows that the assessee had no intention for weighment of goods outside factory (within Bhiwadi) and in fact these transport booking were meant for transportation of goods to places out side Bhiwadi. This fact is further corroborated by the version of Shri Rajesh Soni that work in process material was not sent outside. (vii) Issue os parallel invoice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments which were tendered on the spot voluntarily and without pre-meditation are considered by documentary evidences as discussed supra. 9.6. As regards assessee s request to cross examine all those persons whose statements were recorded by the department during the course of investigation in follow ups, I find that assessee had failed to prove relevancy of cross examination of these persons with the angle of his defence hence their request is not accepted. 9.7. While examining assessee s contention that the amount realised by the assessee from the alleged sale of the goods may be considered as cum-duty-price I find it unacceptable in view of the fact that the value of Aluminium Foils/Scrap has been taken on the basis of average assessable value of Aluminium Foils/Scraps as discussed in details in para 23 24 of show cause notice hence no benefit of cum-duty-price can be given to the assessee. 9.8. Further I find that Shri R.K. Sharma, Director, Shri L.K. Jha, Authorised Signatory and Shri Sudershan Rout, Despatch Clerk of M/s Rajasthan Foils Pvt. Ltd., Bhiwadi are also liable for penal action under Rule 209A of Central Excise Rules, 1944 read with Rule 26 of Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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