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Western India Ceramics Pvt. Limited, Chetan K. Patel Versus C.C.E. & S. Tax, Vadodara

2018 (2) TMI 810 - CESTAT AHMEDABAD

Clandestine manufacture and removal - Glazed vitrified Tiles - excesses and shortage of stock - case is mainly based on statements, which remins uncontroverted - Held that: - All these statements remain uncontroverted and the Appellant at no point of time has requested for cross-examination of these evidences. Besides, from the statement of the Director, it is concluded by the authorities below that M/s Labh Traders was a fictitious firm and created only for the purpose of clearance of vitrified .....

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quantity of tiles were rejected and returned by their customers, however failed to furnish any evidence in this regard before the authorities. Hence, the explanation furnished by the Director of the Appellant was not accepted and confiscation was directed. - Considering the circumstances, shortage in the stock, clearance of the of vitrified tiles cleared clandestinely and seizure of the certain quantity of goods in the premises of the buyers, it can safely be inferred that excess quantity of .....

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Order No. 10287-10288 /2018 - Dated:- 2-2-2018 - Dr. D.M. Misra, Member (Judicial) Shri Mithil Dave, Advocate for the appellants Dr. Jeetesh Nagori, A.R. for the Respondent-Revenue ORDER Per Dr. D. M. Misra These two Appeals are filed against the Order-in-Appeal No. Commr.(A)/249 to 252/VDR-I/2006 dated 29.11.2006 passed by the Commissioner (Appeals), Central Excise, Customs and Service Tax, Vadodara I. 2. Briefly stated the facts of the case are that the factory of the Appellant was visited by .....

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clandestine clearances the Appellant paid total duty of ₹ 1,72,743/- on the same day. Further investigation led to the seizure of vitrified Tiles cleared without payment of duty lying in the customer s premises viz. M/s Delite Ceramics. On completion of investigation, show cause notice was issued demanding duty of ₹ 8,09,807/- alleging clearance of goods without payment of duty, and proposal for penalty; confiscation of the excess quantity of finished goods seized and personal penalt .....

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shortage of goods noticed during the course of stock taking and sample of Tiles cleared without payment of duty. However, they dispute the demand of ₹ 7,16,266/-; out of which ₹ 1,13,443/- paid during the course of visit of the officers admitting clearance without payment of duty. He has submitted that M/s Labh Traders is the consignor in all the cases and thus the Appellants are not the consignor, therefore, if there was any correctness in the allegation of clandestine clearance, t .....

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tted that customers themselves were not clear about the alleged transactions, that is, whether they had received the goods from the Appellant or through M/s Labh Traders, hence, the allegation of clandestine clearance is not tenable in law. Further, he has submitted that confessional statements and random, scattered challans of M/s Labh Traders and LRs, found in the premises of the Appellant itself does not establish clandestine manufacture and clearance of goods by the Appellant through M/s Lab .....

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dence of purchase of raw materials that were used in the manufacture of finished goods removed clandestinely, also consumption of excess electricity was not established by the Department. Further, he has submitted that the personal penalty imposed on the Director is unsustainable as the day to day affairs were looked after by the employees of the company and there was no instance brought on record to show involvement of the Director in the clandestine manufacture and clearance of the tiles. Furt .....

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pellant company admitted such shortage and they have discharged duty on the said shortage, also the goods cleared without payment of duty by using transport document found in the factory was admitted and duty paid on such clandestine clearance. Further, he has submitted that the entire transaction of sale of manufactured Tiles without payment of duty and receiving consideration was carried out by creating a fictitious firm as M/s Labh Traders. The said firm was found to be non-existence; on veri .....

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e & customs work of the company, in his statement has accepted clearance of finished excisable goods without payment of duty and consequently discharged the duty on the shortages and samples cleared without payment of duty and the clearances against LRs found during search operation of their factory. The dispatch clerk Shri Jagdishbhai T. Patel has also admitted clandestine manufacture and clearance of goods. It is his contention that none of the statements was retracted nor the Appellants s .....

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22.6.2004 of M/s Kathiyad Transport seized from the premises of the Appellant. In the said documents, the consignor was M/s Labh Traders. The ld.Commissionr (Appeals) in the impugned order confirmed the said amount observing that it was debited on 23.6.2004 on the day of visit of the officers and this payment was not contested before the adjudicating authority being admitted by Shri Satish A. Shah, Authorised Signatory of the Appellant in his statement dated 23.6.2004. Also, the statement was no .....

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served that the Appellant had created a fictitious firm in the name and style of M/s Labh Traders and the illicit clearance of vitrified tile was made in the name of said fictitious trading firm to various customers. On detailed analysis of the evidences of the customers, who purchased the Glazed Vitrified Tiles, neamely, Shri Pragesh Kumar Rameshbhai Patel, partner of Brij Builders, Shri Rajni Tribhovandas Mistry, Proprietor of M/s C. Rajnibhai & Co. , Shri Ashok Chahabilds Parekh, Partner .....

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el of the Appellant after seeing the sample of glazed vitrified tile which was received by them from to time under invoices and delivery challans of M/s Labh Traders, Padra, Vadodara. The representative of the Appellant informed them that M/s Labh Traders is their sister concern and they had wrongly received payments. Besides, the ld. Commissioner (Appeals) has also observed that the illicitly cleared glazed vitrified tile found at the customer s premises M/s Delite Ceramics and M/s Amol Supplie .....

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