TMI Blog2018 (4) TMI 1015X X X X Extracts X X X X X X X X Extracts X X X X ..... much less any material has been placed on record to substantiate the stand of the appellant, the conclusions of the Commissioner as affirmed by the CEGAT cannot be faulted. Appeal allowed - decided in favor of appellant. - E/70573-70583/2016-EX[DB] - FINAL ORDER Nos-70748-70758/2018 - Dated:- 28-2-2018 - Mr. Anil Choudhary, Member (Judicial) and Mr. Anil G. Shakkarwar, Member (Technical) Shri K.K. Anand, Advocate, Shri A.P. Mathur, Advocate : for Appellants Shri Rajeev Ranjan, Joint Commissioner, (AR), Shri Sandeep Kumar Singh, Deputy Commissioner (AR) : for Respondents ORDER Per: Anil G. Shakkarwar The above stated 11 appeals are arising out of Order-in-Original No.06-08/PR.COMMR./MRT/2016 dated 14/03/2016 passed by Principal Commissioner of Customs, Central Excise Service Tax, Meerut-I. Since all the above stated appeals are arising out of a common Order-in-Original, they are taken together for decision. 2. The brief facts of the case are that M/s Super Fashion Fasteners Pvt. Ltd. (hereinafter referred to as M/s Super) and M/s Omega Zippers Pvt. Ltd. (hereinafter referred to as M/s Omega) were engaged in manufacture of Zip Fasteners, f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods clandestinely manufactured and removed jointly by M/s Super and M/s Omega during the period from April, 2009 to March, 2012. In addition, on the basis of hand written pages and details taken from torn parallel invoices value of clearance of alleged clandestine quantity was arrived at ₹ 92,58,952/- for the period from April, 2009 to March, 2013 jointly by M/s Super and M/s Omega. Revenue further calculated on the said value of clearances Central Excise duty involved to be ₹ 6,49,47,310/-. Further, through sub-para-(iii) of Para-23 of said show cause notice, the said duty liability was apportioned between M/s Super and M/s Omega on the basis of ratio of electricity consumption by M/s Super and M/s Omega. For the said purpose the amount of electricity bills paid by both were taken for the years 2009-10, 2010-11, 2011-12 and up to August, 2012 and their ratio was calculated and further value of alleged clandestine clearances for the said period were apportioned in the ratio arrived at, on the basis of electricity bills paid and alleged value of clandestine clearance by M/s Super and M/s Omega were arrived at and subsequently on that basis duty liability was calculated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the clearances Zip Fasteners valued at ₹ 92,49,830/- made by them during October, 2012 to March, 2013 after obtaining Central Excise registration, should not be demanded and recovered from them under Section 11A(4) of the Central Excise Act,1944 read with the proviso to erstwhile Section 11A(1) of the Central Excise Act, 1944. (v) Interest on the Central Excise duty demanded above should not be demanded and recovered from them in terms of the Section 11AA of the Central Excise Act, 1944 read with erstwhile Section 11AB of the Central Excise Act, 1944. (vi) Penalty should not be imposed upon them under Section 11AC of the Central Excise Act, 1944 read with Rule 25 of Central Excise Rules, 2002. (vii) Central Excise duty amounting to ₹ 42 Lakh paid by them voluntarily during investigation should not be appropriated towards the duty demanded above. 34 . Further, M/s Omega Zippers Pvt. Ltd., S1, Industrial Estate Partapur, Meerut, Uttar Pradesh are also called upon to show cause to the Commissioner, Central Excise, Meerut-I Commissionerate, Opp. Chaudhary Charan Singh University, Mangal Pandey Nagar, Meerut-250005, within 30 days of receipt of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... val of the excisable goods and who was responsible for day-to-day working of the company, is also called upon to show cause to the Commissioner, Central Excise, Meerut-I Commissionerate, Opp. Chaudhary Charan Singh University, Mangal Pandey Nagar, Meerut-250005, within 30 days of receipt of this notice, as to why penalty should not be imposed upon him under Rule 26 of the Central Excise Rules, 2002. 36. Shri Ashok Kumar Malhotra, Director of M/s Super who actively participated in the whole operation of clandestine production, storage and removal of the excisable goods and who was responsible for day-to-day working of the company, is also called upon to show cause to the Commissioner, Central Excise, Meerut-I Commissionerate, Opp. Chaudhary Charan Singh University, Mangal Pandey Nagar, Meerut-250005, within 30 days of receipt of this notice, as to why penalty should not be imposed upon him under Rule 26 of the Central Excise Rules, 2002. 37 . Shri Hitin Malhotra, Director of M/s Omega who actively participated in the whole operation of clandestine production, storage and removal of the excisable goods and who was responsible for day-to-day working of the company, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Excise Act, 1944 demand of Central Excise duty amounting to ₹ 2,94,65,704/- (Rupees Two Crore Ninety Four Lakh Sixty Five Thousand Seven Hundred Four Only) payable on the said apportioned value of clearances of ₹ 33,49,59,675/- (Cum-duty value) made from M/s Super evaded during the period April 2009 to March 2013 as discussed in Para-13.1 13.2 above. I also order for appropriation of the amount of Central Excise duty of ₹ 42 lakh paid by M/s Super voluntarily during investigation towards the duty confirmed above; (ii) I confirm, under Section 11A(4) of the Central Excise Act, 1944 read with the proviso to erstwhile Section 11A(1) of the Central Excise Act, 1944, demand of Central Excise duty amounting to ₹ 3,26,998/- (Rupees Three Lakh Twenty Six Thousand Nine Hundred Ninety Eight Only) payable on the clearances of Zip Fasteners valued at ₹ 29,72,609/- (Cum-duty value) made from M/s Super on parallel invoices (including clearance of 05 bags of Zip Fasteners mentioned in the resumed documents) during September, 2012 as discussed in Para-13.4, 13.5 13.6 above; (iii) I confirm, under Section 11A(4) of the Central Excise Act, 1944 read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfirmed above; (vii) I confirm, under Section 11A(4) of the Central Excise Act, 1944 read with the proviso to erstwhile Section 11A(1) of the Central Excise Act, 1944, demand of Central Excise duty amounting to ₹ 8,28,599/- (Rupees Eight Lakh Twenty Eight Thousand Five Hundred Ninety Nine Only) made from M/s Omega leviable on the clearances of Zip Fasteners value at ₹ 87,66,126/- (Cum-duty value) effected by them on bills during the period from 03/01/2010 to 21/07/2010, April 2012, August 2012 and September 2012 for which private records were not available as discussed in Para-13.3 above; (viii) I confirm, under Section 11A(4) of the Central Excise Act, 1944 read with the proviso to erstwhile Section 11A(1) of the Central Excise Act, 1944, demand of Central Excise duty amounting to ₹ 10,18,518/- (Rupees Ten Lakh Eighteen Thousand Five Hundred Eighteen Only) made from M/s Omega leviable on the clearances of Zip Fasteners valued at ₹ 92,58,952/- (Cum-duty value) effected by them during October 2012 to March 2013 after obtaining Central Excise registration, as discussed in Para-13.7 above; (ix) The total demand of ₹ 3,00,53,471/- (Rupees T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arbanda, Proprietor of M/s Shailesh Traders; Shri Gulshan Kumar Bhatia, Partner of M/s Niwar Corner, and Shri Ramandeep Singh, Proprietor of M/s New Gupta Transport Forwarding Agency under Rule 26 of the Central Excise Rules, 2002 for the offence they committed during relevant period of time. The dues adjudged herein above may be paid forthwith. Aggrieved by the said order above stated appellants have preferred above stated appeals before this Tribunal. 4. Heard the Learned Counsel Shri K.K. Anand for M/s Super, M/s Omega, Shri Hitin Malhotra, Shri Ashok Kumar Malhotra, Shri Anupam Mehta heard Learned Counsel Shri A.P. Mathur for remaining appellants. The Learned Counsel Shri K.K. Anand has submitted that the duty demanded in the instant show cause notice is against the provisions of Section 11A of Central Excise Act, 1944, inasmuch as the provisions of said Section required specific amount to be demanded in clear terms on the basis of strong evidence and indisputable values of alleged clearances. He has relied on the ruling of Hon ble Apex Court in the case of Commissioner of Central Excise, Bangalore Vs Brindavan Beverages Pvt. Ltd. reported at 2007 (213) E.L.T. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 834/2014 and contended that the Hon ble Supreme Court has held in Para-13 of the said ruling that on interpreting the provisions of Section 65B of Evidence Act, 1972 (which is para meteria with Section 36B of Central Excise Act, 1944). The purpose of these provisions is to sanctify secondary evidence in electronic form and that the Section starts with a non obstante clause, which says that notwithstanding anything contained in the Evidence Act, any information contained in an electronic form, shall be deemed to be a document only if the conditions mentioned under Sub-rule (2) are satisfied and that the admissibility of such document retrieved from electronic record needs to satisfy four conditions. He has further submitted that on interpretation of Section 65B (4) of Evidence Act the Hon ble Supreme Court has held in Para-15 of said ruling that a certificate must accompany the electronic record like computer printout, Compact Disk, pen drive etc. pertaining to which a statement is sought to be given in evidence and the same is produced as evidence. Further, he has argued that the computer printout which have been retrieved in the present case are not in compliance with the provisio ..... 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