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TMI Blog2018 (10) TMI 634X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants. 2. The facts of the case are that the appellant/M/s P.S. is engaged in the manufacture of Stainless Steel Pipes & Tubes who is registered with the central excise department having their head office at Hisar and also having their trading office at Motia Khan, Delhi. M/s P.S is also having their sister unit namely M/s Sheela Stainless Pvt. Ltd (in short M/s SSPL) having their office at Hisar and engaged in their trading of Iron & Steel Products and also having central excise registration as registered dealer. They are also having their sales office located at Motia Khan, Nabi Karim, New Delhi. The offices of the M/s P.S and M/s SSPL located in Delhi were not registered with the central excise department. The head office of M/s P.S and M/s SSPL is located in Hisar and the records of the both were maintained M/s P.S's office at Hisar. On 11.04.2013, a search was conducted at the premises to the M/s P.S and M/s SSPL. The factory of M/s P.S was found working. No variation in stock of inputs as well as finished goods were found in records of the stock maintained in the statutory records and no incriminating documents were recovered during the search of the factory premises of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tains name of appellant and their buyer. The identity of the person mentioned therein could not be established as per department. It has been mentioned that evidences strongly suggest that amounts collected from persons/party were nothing but sale proceeds of appellant. As per folder "Daily Paper" amount of Rs. 9,74,60,825/- and as per folder "Hisar Paper" Rs. 71,52,650/- received. The duty of Rs. 95,95,013/- has been demanded (i.e. Rs. 89,49,777/- on receipt of cash under "Delhi Paper" and duty of Rs. 6,45,236/- on receipt of cash under "Hisar Paper". There is no quantity of impugned goods mentioned in the show cause notice. 5.1 There are 226 entries in "excelsheets" description in respect of which tally with invoices except gross value. It has been alleged undervaluation and duty of Rs. 28,13,716/- demanded. 6. It has been alleged that in follow up searches conducted on 20.06.2013 at the premises of M/s Vanita Hardware Store, Cuttak, M/s Balkishan & Sons, Gwalior and M/s Ravi Steels, Gwalior, it was found appellant had evaded duty on clandestine clearances from 11.04.2013 to 20.06.2013, the duty of Rs. 5,91,977/-. 7. It has been alleged that appellant had issued 261 invoice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi Paper- Details as per Annexure -'H'-Page 187 SCN 89,49,777/- 5. Receipt of cash amounts under Hisar Paper- Details as per Annexure -'I'-Page 189 SCN 6,45,236/- 6. Undervaluation-Details as per Annexure -'C'-page-148 SCN 1277.207 28,13,716/- 7. Total 3822.934 4,72,73,240/- It is his submission that it has been held that the appellants cleared 1824.862 MT of Stainless Steel Pipe without payment of duty of Rs. 2,47,19,535/- against the 578 entries during the period 01.01.2012 to 09.04.2013 and the head office at Hisar was joint office of the M/s P.S and their sales office at Hisar and New Delhi of M/S SSPL. The Ld. Adjudicating authority erred in considering the entire data in excel sheets pertaining to clearance from the factory premises of M/s P.S. as it also contains the sales of other locations of M/s P.S. and also of M/s SSPL. Further, the adjudicating authority failed to appreciate that the excel sheets data not only pertains to clearances of M/s P.S. and others but it is also on record that the purchase orders received by Mr. Deepak Gupta and Mr. Vishal Gupta. The adjudicating authority further failed to appreciate that in case excel sheets ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l sheets is in the name of "Delhi Office" retrieved from pen drive revealed that there are 198 entries in said excel sheets against which no invoice available in the records. Further, held that appellants against 198 entries during the period 01.01.2012 to 31.03.2012 cleared impugned goods weighing 679.961 MT, without payment of duty of Rs. 95,52,999/-. In fact, the adjudicating authority has failed to appreciate that in the 'Excelsheets' data, the entries are in the name of Vishalji, connotes that these orders were booked through Mr. Vishal Gupta and Shri Vishal Gupta in his statement dated 12.07.2013 categorically stated that his name mentioned in the folder named 'Delhi Office' as orders were booked by him and it was his responsibility to receive the payments thereto. The impugned order has not taken into account this fact and erred in concluding that since no invoice issued from the factory of the M/s P.S in the name of Mr. Vishal Gupta, all the entries in the name of Vishalji in the 'Excelsheets' data are goods clandestinely removed. The adjudicating authority on one hand alleged that the entry in the name of Vishalji was goods sent to Delhi Office without payment of duty and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pts are of clandestine removal of goods or undervaluation of goods in respect of the clearance made by the appellants. Therefore, the said demand is not sustainable. Further, the adjudicating authority failed to appreciate that Delhi Paper and Hisar Paper represents the trading clearances of appellant's trading unit and M/s SSPL's trading unit. There is nothing brought on records that goods against alleged cash receipts which were clandestinely removed by the M/s P.S. He further submits that there is no variation in stock of inputs and finished goods found during the course of visit and verification on 11.04.2013 and no incriminating documents were recovered during the search of appellant's factory. There is no allegation regarding illicit purchase of raw material how the goods manufactured and cleared has not been brought on record. The appellants were not having production capacity to manufacture goods as alleged in impugned order. There are neither any statement of any consignor nor of transporter nor any flow back to substantiate purchase of raw material illicitly or excess consumption of electricity. He further submits that during the impugned period March 2011 to December 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'Excelsheets' data is a record of dispatch of goods from the factory of the appellant and on the other hand corroborates the stand of the appellant that they cleared goods alongwith invoices. It is his submission that the appellants have issued goodless invoices to unregistered dealer who were not registered with the central excise department, therefore, the allegation of appellant issued goodless invoices to make available cenvat credit to consignee is misconceived, therefore, on the said amount, the demand is not sustainable. It is his submission that on one hand it is alleged some quantity of goods was removed clandestinely and on the other hand it is alleged that on a subsequent date a "goodless invoice" of almost the same weight was issued to the same party. It is his submission that the appellants have supplied goods and later on issued "goodless invoice" of the almost same quantity after a few days to same party. 5. With regard to the issue of undervaluation, the demand of Rs. 28,13,716/- has been confirmed. It is his submission that the perusal of chart reveals that it pertains to clearances against which genuine invoice of lower rate per kg. has been issued and value sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence. The Section 36B of CEA, 1944 is extracted herein below:- "Admissibility of micro films, facsimile copies of documents and computer print outs as documents and as evidence.- (1) Notwithstanding anything contained in any other law for the time being in force,- (a) a micro film of a document or the reproduction of the image or images embodied in such micro film (whether enlarged or not); or (b) a facsimile copy of a document; or (c) a statement contained in a document and included in a printed material produced by a computer (hereinafter referred to as a "computer print out"), if the conditions mentioned in sub-section (2) and the other provisions contained in this section are satisfied in relation to the statement and the computer in question, shall be deemed to be also a document for the purposes of this Act and the rules made thereunder and shall be admissible in any proceedings thereunder, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. (2) The conditions referred to in sub-section (1) in respect of a computer print out shall be the follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. (5) For the purposes of this section,- (a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; (b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities; (c) a document shall be taken to ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri.-Ahmd.) wherein the paragraph 40 of the said order has observed as under:- "40. After having very carefully considered the law laid down by this Tribunal in the matter of clandestine manufacture and clearance, and the submissions made before us, it is clear that the law is well-settled that, in cases of clandestine manufacture and clearances, certain fundamental criteria have to be established by Revenue which mainly are the following : (i) There should be tangible evidence of clandestine manufacture and clearance and not merely inferences or unwarranted assumptions; (ii) Evidence in support thereof should be of : (a) raw materials, in excess of that contained as per the statutory records; (b) instances of actual removal of unaccounted finished goods (not inferential or assumed) from the factory without payment of duty; (c) discovery of such finished goods outside the factory; (d) instances of sale of such goods to identified parties; (e) receipt of sale proceeds, whether by cheque or by cash, of such goods by the manufacturers or persons authorized by him; (f) use of electricity far in excess of what is necessary for manufacture of goods otherwise manufactured ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n detail, since the learned Counsels on either side may not have had the opportunity of examining the decision in the light of the facts of the present case. Suffice it to say that the said decision has also tabulated the entire case-law, including most of the decisions cited before us now, considered them, and come to the above conclusion. In yet another decision of a co-ordinate Bench of the Tribunal [Pan Parag India v. CCE, 2013 (291) E.L.T. 81], it has been held that the theory of preponderance of probability would be applicable only when there are strong evidences heading only to one and only one conclusion of clandestine activities. The said theory, cannot be adopted in cases of weak evidences of a doubtful nature. Where to manufacture huge quantities of final products the assessee require all the raw materials, there should be some evidence of huge quantities of raw materials being purchased. The demand was set aside in that case by this Tribunal." As all the elements cited herein above are missing, therefore, it cannot be alleged that the appellants are indulged in the activity of clandestine clearance of the goods. 10. We further take note of the fact that on the one han ..... X X X X Extracts X X X X X X X X Extracts X X X X
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