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TMI Blog2019 (1) TMI 1101X X X X Extracts X X X X X X X X Extracts X X X X ..... ng authority has also imposed penalty of Rs. 25.00 Lakhs on M/s. Shivam Enterprises along with imposition of penalties of Rs. 50.00 lakhs each on Shri Sharan Maini, and Shri V.K. Maini, partners of M/s. Shivam Enterprises. 2. We have heard Shri Naveen Mullick, Learned Advocate for the Appellants at Sl. No.1, 2 & 4 and Shri Sandeep Kumar Singh, Learned Dy. Commissioner (A.R.) for the Revenue. 3. The appellant M/s. Veira Electronics Pvt. Ltd., against whom the demands stand confirmed, was engaged in the manufacture of Colour TVs as also in sub-assemblies of Colour TVs. They were duly registered with the Central Excise department and were clearing their final product on payment of Central Excise duty, after availing the benefit of Cenvat credit on duty paid on the inputs. As per the appellant the said factory is located in a plot size of 800 sq. yards and keeping in view the infrastructure including the workers, they have capacity to manufacture about 4500 CTVs sets in a month. The manufacture of CTVs involved use of various components like picture tube, moulded TV cabinets, speakers, chessis, thermocoil, main lead, hardware and degauzing coil etc.. 4. The said appellant's factory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. It was believed that the same were actually manufactured in the factory of M/s. Viera Electronics and shown to have been cleared from the factory of M/s. Shivam Enterprises. Accordingly further investigations were conducted and it was found that M/s.Shivam Enterprises was not having sufficient infrastructure to manufacture the goods. Statement of Shri Ashwini Kapoor, who was looking after the said factory was recorded on 10.03.2011 wherein he deposed that only a small percentage of the goods were actually manufactured by M/s. Shivam Enterprises and the rest of the production/clearances were only paper transactions, without any physical movement of the goods. He also deposed that there was no DG set installed in their factory and the electricity expenses during the financial year 2009-10 and 2010-11 were not sufficient to manufacture such a huge quantum of their final product. He further admitted that the expenses shown in their ledger account in respect of running of Genset were false as there was no DG set installed in their factory. To verify the sale pattern of M/s.Shivam Enterprises, further investigations were conducted at their customers‟ end as also at the premi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c Electronics Industries as also against M/s.Viera Electronics alleging that they have manufactured and clandestinely cleared the various electronic items manufactured by them so as to remain within the exemption limit. The said allegation was made on the ground that the various firms belonging to Bhatia's were importing the components of various goods, which were being diverted to the said firms. The various components were used by the said firms for the manufacture of their final product. Further said part of the show cause notice also proposed imposition of penalty on M/s.Shivam Enterprises by alleging that 85% of the sales of the DVDs and DTHs shown to have been manufactured by them were in fact manufactured in the factory premises of M/s.Conic Enterprises. Further penalty was also proposed to be imposed on Shri V.K.Maini, Sharan Maini. The said part of the show cause notice required the assessee to show cause to the Commissioner of Delhi. Apart from above, there was another "part-B" which proposed duty confirmation against M/s.Viera Electronics Pvt.Ltd. alleging clandestine manufacture and clearance of CTVs, based upon the procurement of raw materials from the importing firms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Shri H.S.Bhatia and his family members had gone, it cannot be held that the same were received by the manufacturing unit, who used the same for manufacture of their final product, cleared clandestinely. The said order of the Commissioner of Central Excise stand accepted by the Committee of Chief Commissioners. This fact becomes clear from the subsequent order of the Assistant Commissioner of Central Excise being Order-in-Original No.06/2017 dated 24.042017 wherein it was observed that as the above order of the Commissioner, New Delhi stand accepted by the Committee of Chief Commissioners on 14.02.2017, accordingly the consequential relief has to be granted. 11. It is the contention of the learned Advocate appearing for the appellants that the proceedings initiated against the other manufacturers based upon the same set of investigations and evidences, having been dropped, the present proceedings which are based upon the same very set of facts and evidences are required to be set aside. He further argues that the entire case of the Revenue is based upon assumptions and presumptions and without any evidence to establish the actual manufacture of the goods in the appellant's facto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Conic and for manufacture of CTVs in the factory premises of M/s.Viera Electronics Pvt.Ltd. and M/s.Maini Electronics". We have already observed that the same show cause notice, based upon the same set of allegations and evidences, issued against M/s.Conic Electronics, stand dropped by the Principal Commissioner of Central Excise, Delhi. 14. We also agree with the learned Advocate that for production of CTVs, a number of other items are required like chessis, picture tubes, TV cabinets, degauzing coil box, thermocoil and hardware etc.. The Revenue's allegation relate only to the alleged diversion of unaccounted PCBs imported by Bhatias to their factory. There is no whisper of procurement of other raw materials required to be used in the manufacture of CTVs. In the absence of any allegation/evidences of procurement of other requisite raw materials, the allegations of clandestine manufacture of around one and a half lakh CTVs cannot be upheld. It is also on record that the appellant's factory was visited by the officers and there was no discrepancy in the stocks of raw materials or the final products. The appellants have strongly contended that they do not have the capacity to manuf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judication order and no serious attempt made by the Revenue is fatal to the Revenue. Further the Tribunal in the case of P & J Auromatics v. CCE, Delhi-II observed that summary calculation of duty demand cannot be upheld and the suspicion however strong cannot be substituted for evidence to support demand of clandestine removal. As such, in the absence of any evidence, we find no reasons to uphold the said demand. 16. Further duty of Rs. 29,08,656/- stands confirmed on the ground that 85% of the total sale of CTVs in the sales invoices of M/s.Shivam Enterprises, Parwanoo are actually manufactured and cleared by M/s.Viera Electronics Pvt.Ltd. during the period April 2009 to March 2011. We note that the said M/s.Shivam Enterprises is a factory located in Parbanoo, which enjoys the Area Based Exemption Notification. At the time of visit of the officers, the said factory was found to be working and the manufacturing activities going on in the production area. The unit was also found to be having stock of DVDs and TVs. Even though the Production Manager of the company Shri Vinod Thakur alias Bobby was present at the time of visit of officers as is evident from the Panchnama, but no sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y evidence, the demand stands confirmed against M/s.Veira Electronics on the allegations that the goods were actually manufactured in their factory, but shown to have been cleared from the factory of M/s.Shivam Enterprises. In the absence of any evidence to that effect the demand raised against them cannot be sustained. 17. Further demand of Rs. 24,40,590/- and Rs. 8,53,699/- stand confirmed on the basis of the documents (loose slips and note-book resumed from the joint residence of Shri V.K.Maini), which in turn is based upon the same allegations of import and procurement of unaccounted PCBs from the firm of Bhatias. Apart from some scribbling made on some loose documents, there is no evidence showing any manufacture and removal of the goods. As such we are of the view that the said demand is also not sustainable. 18. Apart from independently arriving at the conclusion of unsustainability of the impugned order, we also take note of the fact that based upon the same set of evidences and investigations, the other part of the same show cause notice, i.e. "Part-A" stands adjudicated by the Principal Commissioner of Central Excise, Delhi and stand accepted by the Revenue, as already ..... X X X X Extracts X X X X X X X X Extracts X X X X
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