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2018 (2) TMI 367

inflate the percentage of fly ash used in the final products to be 25% or above in order to avail exemption under N/N. 6/2002-CE dt. 1.3.2002 - case of the department is mainly based on the variation in the figures of fly ash allotted / lifted for M/s.Visaka Industries Ltd. as shown in the records of MTPS and that of the appellant. - Held that: - The quantity shown to have allotted to appellant as per records of MTPS is much lower than that shown to have received in the records of appellant. The difference is quantified in Annexure-I and II of the SCN for respective periods 2002-03 and 2004-05. Accordingly, the bogus fly ash receipt accounted in excess by Vinayaka Industries for the year 2003-04 is 2251.311 MTs. The appellants have shown the use of 27.91% of fly ash in the various Forms and returns furnished to the department. According to department if the bogus receipts are deducted, the use of fly ash would be reduced to 24.54% for the year 2003-04. Similarly, the bogus fly ash receipt accounted in excess by Visaka Industries for the year 2004-05 is 7957.69. The appellants have shown use of 26.65% of fly ash for this year and when the alleged bogus fly ash receipt is deducte .....

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the years 2003-04 and 2004-05 on charges that they had wrongly availed Exemption Notification No.6/2002 by accounting bogus / excess fly ash receipts. The show cause notice was also issued to M/s.Natesan Engineers and Contractors alleging that they have connived in raising documents for bogus receipt of excess fly ash. After adjudication, the original authority confirmed demand to the tune of R.13,23,85,374/- and imposed equal penalty on M/s.Visaka Industries Ltd. under Rule 25 of Central Excise Rules,2002. Penalty of ₹ 19,00,000/- was imposed on M/s.NEC under Rule 26 of CER 2002. Aggrieved, the appellants are now before the Tribunal. 3.1 On behalf of the appellant, the ld. Counsel Shri Raghavan Ramabhadran submitted that the main ground for confirmation of the demand was that on enquiry made with MTPS, it was found that the fly ash allotted and lifted for supply to the appellant as per MTPS records was much less than what was recorded as received in the accounts of the appellant. He argued that the appellant engaged M/s.NEC for transportation and supply of fly ash and the appellant had obtained fly ash not only from MTPS but also from other sources. The appellant had consis .....

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v) In effect, after August 2003, due to the change in mechanism of distribution of fly ash and the difficulty in procurement of fly ash, it became a freely traded commodity in the market. The cement companies started selling fly ash from their silos to other parties. vi) Accordingly, the appellant either directly or through NEC procured fly ash from various sources. The total fly ash procurement during the impugned period is summarised below : Year Source Quantity (in MT) 2003-04 MTPS Direct Allotment 7285.06 Shri Karthikeyan Transports 1322.235 Chettinad Cement 1295.00 Sakthiguhan Construction Products 21.75 TOTAL 9924.04 2004-05 MTPS Direct Allotment 3829.65 MSM Transports 2480 ACC RMC 2481.93 Chettinad Cement 2957.85 Sakthiguhan Construction Products 13.260 SIAR Traders 30.060 TOTAL 11792.750 vii) In the year January 2005, Natesan Construction & Products (NCP) was established solely for the purpose of supplying fly ash from open market. NCP obtained sales tax registration in the month of January 2005. viii) Appellant paid for the fly ash only through cheque or demand draft. There were no cash purchases of fly ash at all. ix) At the time of entry of each consignment of fly a .....

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nd has also produced documents showing correct number of vehicles which is appended along with miscellaneous application. As per this document, it can be seen that vehicle number TN 28 J 5999 has been wrongly noted by the appellant and the correct number of the vehicle is TN 28 J 5099. Similarly, TN 28 A 3366 was wrongly noted and the correct number is TN 28 A 3336; that these documents would establish that appellant has transported fly ash from other sources apart from the allotment from MTPS to the factory. 4.1 The Ld. Senior Counsel Shri N. Rajagopalan appeared on behalf of the Revenue and argued the matter. He strongly opposed the Miscellaneous Application filed by appellants to receive additional documents. He submitted that the appellant has not produced any documents before the adjudicating authority and that the same cannot be admitted at the stage of appeal before the Tribunal. It is argued by Ld. Senior Counsel that there is no sufficient ground for receiving additional documents at such belated stage. 4.2 On merits, Ld. Sr. counsel submitted that the exemption as per the notification is available to the goods falling under Chapter 68 of the CETA 1985 on condition that no .....

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ten permission. Thus claim of M/s.NEC that they got fly ash from other small allotees is totally without basis. The demand raised is legal and proper. 5. Heard both sides. 6. The allegation is that M/s.Visaka Industries Ltd. intentionally resorted to accounting of bogus / excess fly ash receipts in their registers with a motive to inflate the percentage of fly ash used in the final products to be 25% or above in order to avail exemption under Notification No.6/2002-CE dt. 1.3.2002. The case of the department is mainly based on the variation in the figures of fly ash allotted / lifted for M/s.Visaka Industries Ltd. as shown in the records of MTPS and that of the appellant. The quantity shown to have allotted to appellant as per records of MTPS is much lower than that shown to have received in the records of appellant. The difference is quantified in Annexure-I and II of the SCN for respective periods 2002-03 and 2004-05. Accordingly, the bogus fly ash receipt accounted in excess by Vinayaka Industries for the year 2003-04 is 2251.311 MTs. The appellants have shown the use of 27.91% of fly ash in the various Forms and returns furnished to the department. According to department if th .....

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anies to whom they are supplying fly ash; that they are collecting fly ash from MTPS through tipper lorries and they are dumping the same in the Sankari Yard and from there they are packing and supplying it to many companies; that apart from the allotment of M/s.Visaka from MTPS they also got materials from outside sources like agents of brick units who got allotment from thermal power stations; that apart from their usage excess material will be sold by them to many agents like M/s.Natesan Engineers & Contractors and Natesan Construction Products; that M/s.Natesan Engineers & Contractors and Natesan Construction Products supply these quantities to those companies who need more fly ash apart from their allotted quantities. Further Shri Santhosh Kumar, Proprietor of M/s.NEC has deposed that he is procuring fly ash from MTPS as well as from other sources and supplied to appellants. It is very much clear that the additional documents do not set up a new case or a new plea for the appellants. This being so the objections of the department on the Miscellaneous Application filed by the appellants is not tenable. 8. From the discussions made above, we are of the considered opinion .....

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