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TMI Blog2018 (4) TMI 1015X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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, falling under Chapter 96 of Schedule to Central Excise Tariff Act, 1985. On 21/09/2012 officers of Director General of Central Excise Intelligence conducted simultaneous searches at the factory premises of M/s Super and M/s Omega and at residences of their Directors Shri Anupam Mehta and Smt. Jyoti Mehta. As on 21/09/2012 both M/s Super and M/s Omega were declerants and had not registered themselves with Central Excise. From the factory premises of M/s Super certain documents, two laptops and one CPU were resumed by the officers. Further, finished goods, intermediate and raw materials were detained and were subsequently seized on 29/10/2012. At the residence of Shri Anupam Mehta and Smt. Jyoti Mehta a pen drive and certain documents were recovered, in addition some torn invoices of M/s Super were also found in the residential premises of Shri Anupam Mehta. On 21/09/2012 statement of Shri Hitin Malhotra, Director ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. On the said basis availment of duty liability of alleged clandestine clearance, the said show cause notice made following proposals, which are reproduced below:- "33. Now, therefore, M/s Super Fashion Fasteners Pvt. Ltd., A-5, Industrial Estate Partapur, Meerut, Uttar Pradesh are 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 Show Cause Notice as to why:- (i) Value of the clearances of Rs. 33,49,59,675/- out of the total value of clearances of Rs. 61,97,34,243/- recorded jointly for M/s Super and M/s Omega in the resumed documents and retrieved data, should not be apportioned to them and Central Excise duty amounting to Rs. 3,24,93,572/- (Rupees Three Crore Twenty Four Lakh Ninety Three Thousand Five Hundred Seventy Two Only) leviable on the said apportioned value of clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Show Cause Notice as to why:- (i) Value of the clearances of Rs. 28,47,74,568/- out of the total value of clearances of Rs. 61,97,34,243/- recorded jointly for M/s Super and M/s Omega in the resumed documents and retrieved data, should not be apportioned to them and Central Excise duty amounting to Rs. 2,79,92,210/- (Rupees Two Crore Seventy Nine Lakh Ninety Two Thousand Two Hundred Ten Only) leviable on the said apportioned value of clearances of Rs. 28,47,74,568/- 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. (ii) Central Excise duty amounting to Rs. 9,16,855/- (Rupees Nine Lakh Sixteen Thousand Eight Hundred Fifty Five Only) leviable on the clearances of Zip Fasteners valued at Rs. 87,66,126/- made 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, shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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. 38. Shri Amit Mehta, Proprietor of M/s Amit Sales Corporation; Shri Satish Kumar Bansal, Proprietor of M/s Bansal Traders; Shri Umesh Gupta, Proprietor of M/s Ram Trading Company; Shri Shailesh Kharbanda, Proprietor of M/s Shailesh Traders; Shri Gulshan Kumar Bhatia, Partner of M/s Niwar Corner, who were concerned in purchasing and selling of the excisable goods which they knew or had reason to believe were liable to confiscation under the provisions of the Central Excise Act, 1944 and Central Excise Rules, 2002, 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 this notice, as to why penalty should not be imposed up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder 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 Rs. 8,05,168/- (Rupees Eight Lakh Five Thousand One Hundred Sixty Eight Only) made from M/s Super leviable on the clearances of Zip Fasteners value at Rs. 86,12,165/- (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; (iv) 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 Rs. 10,17,514/- (Rupees Ten Lakh Seventeen Thousand Five Hundred Fourteen Only) made from M/s Super leviable on the clearances of Zip Fasteners value at Rs. 92,49,830/- (Cum-duty value) effected by them during October, 2012 to March, 2013 after obtaining Central Excise registration, as discussed in Para-13.7 above; (v) The total demand of Rs. 3,48,93,839/- (Rupees Three Crore Forty Eight Lakh Ninety Three Thousand Eight Hundred Thirty Nin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Four Hundred Seventy One Only) made from M/s Omega stands modified to the extent of Rs. 2,71,86,719/- (Rupees Two Crore Seventy One Lakh Eighty Six Thousand Seven Hundred Nineteen Only) as confirmed in Para 20(vi) to 20(vii) above and re-calculated in Para 13.8 above; (x) I confirm that in terms of the Section 11AA of the Central Excise Act, 1944 read with erstwhile Section 11AB of the Central Excise Act, 1944 interest is chargeable from M/s Super & M/s Omega on the amount of Central Excise duty confirmed above under Para-20 (i) to Para-20 (iv) and Para-20 (v) to Para-20 (viii) above; (xi) I also order for confiscation of seized stock of finished goods, intermediate goods and raw materials, collectively valued at Rs. 28,76,753/- found on 21/09/2012 at the factory premises of M/s Super (SCN F.No. DZU/INV/F/CE/203/2012/930 dated 18/03/2013) and valued at Rs. 33,18,715/- found at the factory premises of M/s Omega (SCN F.No. DZU/INV/F/CE/203/2012/925 dated 18/03/2013) in terms of Rule 25 of Central Excise Rules, 2002 with an option to redeem the same by each of them on payment of an amount of Rs. 5.0 Lakh as redemption fine as the said goods have already been released provisionally; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned on the basis of ratio arrived at on the basis of electricity consumed by them for the manufacture of goods which was reflected in their books of account. He has further submitted that Revenue has presumed that the alleged clandestine clearances were also in the same proportion. Therefore, the apportionments of demanding duties on individual appellants were presumptive in nature. He has further submitted that the Hon'ble Supreme Court in the said case of Commissioner of Central Excise Vs. Brindavan Beverages Pvt. Ltd. (supra) in Para-10 has held that the Noticee has to be given proper opportunity to meet the allegations indicated in the show cause notice and if allegations are not specific and are vague and lack details then such show cause notices are not maintainable. He has further argued that though they do not agree with the contention that there was any clandestine clearance, it is least to say that the duty liability fastened on individual appellants was presumptive. He has further submitted that the value of clearance by M/s Super during the year from 2009 to 2013 was never more than Rs. 1.5 crores per year, whereas the same for the years 2010-13 in respect of M/s Omega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced by a computer during the period over which the computer was used regularly to store or process information by the person who was in total control, and who was using the computer and that there should be regularity in use of such computer and contended that in the present case the data was retrieved from the storage device called Pen drive and it was not established that it was used regularly and was under the control of authorized person. He has further submitted that cross examination was allowed and the witness cross examined, have not supported the statement recorded during investigation. In respect of other noticees Learned Counsel Shri A.P. Mathur has submitted that the other persons on which personal penalty under Rule 26 was imposed were not having any control over the clearances of the goods and there was no possibility of knowing whether the goods dealt with by them has suffered duty or not and the Original Authority has not established that they were having knowledge that the goods were cleared without payment of duty and therefore, the penalties imposed on them are not justified. 5. Heard Shri Rajeev Rajan, Joint Commissioner A.R. for Revenue and also Shri Sand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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