TMI Blog2019 (7) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of this Tribunal has not been complied with - thus as the adjudication authority has not followed the direction of this Tribunal, on this ground alone, the impugned order is liable to be set aside. Also, in the show cause notice, it has been alleged that printouts have been taken from the laptop whereas in the adjudication order, the adjudicating authority held that the printouts taken from the CPU which creates doubt. In that circumstance, on the basis of electronic printouts, the demands against the appellants are not sustainable. The allegation against M/s. Waryam manufacturer of ingots is not sustainable as no other corroborative evidence has been produced by the Revenue on record. Therefore, the demand confirmed against M/s. Waryam is set aside. In the case of M/s. Vee Kay, we find that the production capacity has been worked out to 10781 MT by the department itself - HELD THAT:- If we take alleged clandestine production into consideration the total production worked out to 186 41.01 MT which is beyond annual production capacity of M/s.Vee Kay - No contrary evidences has been brought on record by the Revenue. Furthermore, In the remand, proceedings, the adjudicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts were taken from the computer/laptop and seized. On the basis of these printouts, it was revealed that M/s. Vee Kay had clandestinely procured large quantities of raw materials/inputs, which had been subsequently been used in the clandestine manufacture and sale of finished goods without payment of duty. It was also revealed that M/s. Vee Kay had procured 12342.44 MT of ingots clandestinely from various manufactures/suppliers including M/s.Waryam and procured 12095.59 MTs of non alloy steel rods/bars clandestinely and sold them to various buyers without accounting in their record and without payment of duty of ₹ 4,93,50,012/-. It was also revealed that the quantity of steel rods/bars clandestinely manufactured and sold by M/s. Vee Kay were shown in record to have been sold and traded by the sister trading unit, i.e. M/s.Vee Kay Iron and Steel Traders, which has been described as dummy. The statements of Shri Atul Gupta and Shri M.K.Gupta were also recorded. The officers of Central Excise also investigated a number of ingots manufacturers, M/s. Waryam and the traders were investigated, it has been alleged that they have clandestinely manufactured/sold ingots to M/s. Vee Kay. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Shri Atul Gupta, Director of the appellant company and authorized signatory of M/s. Waryam, under Rule 25 of the Central Excise, 2001 read with Section 11AC of the Central Excise Act, 1944. (vii) Imposing a penalty of ₹ 4,93,50,012/- on Shri M.K.Gupta, proprietor of M/s.Vee Kay Iron Steel Co.Ltd., under Rule2 5 of the Central Excise, 2001 read with Section 11AC of the Central Excise Act, 1944. Against the said order, the appellants are before us. 5. Ld. Counsel appearing for the appellant submits that the adjudicating authority has not followed the remand direction of this Tribunal in earlier round of litigation as and no soft copies of the printouts were provided nor allowed cross examination of panchas and central excise officers, who were present at the time of search on 22.03.2005. Therefore, the impugned order is to be set aside on this ground alone. 6. He further submits that the panchnama dt.22.3.2005 was drawn at the office of M/s. Vee Kay Iron and Steel commenced at 12.30 am and concluded 22.00 am and had the signature of Shri Atul Gupta. It is on record that Shri Atul Gupta fell ill during the panchnama proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir statements recorded. 11 of them confirmed supply of ingots on payment of duty as recorded in the books of M/s. Vee Kay and denied having supply any raw materials other than these and which were reflected in computer printouts and remaining three denied having supplied any raw materials to the M/s.Vee Kay. 10. He further submits that the adjudicating authority has held that the veracity of the printouts cannot be challenged since a number of manufacturers of ingots had accepted the demand raised on them on the basis of the printouts. It is submitted that the payment were made by five such companies to avoid harassment and not as an admission of guilt. He submits that the show cause notices were issued to two units and against those units, the proceedings have been dropped by this Tribunal in the case of M/s. A,K,Alloys Pvt.Ltd. vide Final Order No.A/60944/2017 dt.17.5.2017 and in the case of M/s. Malerkotla Steel Alloys Pvt.Ltd. vide Final Order No.A/61203/2017- dt.29.6.2017. Therefore, the said printouts having no evidentiary value to allege clandestine receipt of the goods by M/s. Vee Kay from manufacturer M/s. Waryam. It is also submitted that the penalty impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed capacity of the unit; (viii) Inculpatory statements from employees or Directors of the company No evidence is available to allege clandestine removal of the goods. 13. In the impugned order, the adjudicating authority has held that the trader was a dummy unit, no evidence has been produced about any money flow back from the trader to M/s. Vee Kay or of management control or of profit sharing or that the trader exists only on paper. On the contrary there is ample evidence of sale and purchase of goods by the trader, who were also regularly filling VAT returns and were aloes filing income tax returns. 14. With regard to the demand of duty confirmed against M/s. Waryam, two final orders passed in respect of A.K.Alloys Ltd. And M/s. Malerkotla Steel Alloys Pvt.Ltd. on the identical facts of M/s. Waryam, therefore, the demand against M/s. Waryam is not sustainable. 15. He further submits that the department itself had assessed the annual production capacity M/s. Vee Kay at 10781.59 MT. If the alleged clandestine production is taken into account, the total clearances by M/s. Vee Kay worked out to 18641.01 MT. Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; (b) during the said period, there was regularly supplied to the computer in the ordinary course of the said activities, information of the kind contained in the statement or of the kind from which the information so contained is derived; (c) throughout the material part of the said period, the computer was operating properly or, if not, then any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of the contents; and (d) the information contained in the statement reproduced or is derived from information supplied to the computer in the ordinary course of the said activities. (3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether - (a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of those activities; (c) a document shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. Explanation. - For the purposes of this section, - (a) computer means any device that receives, stores and processes data, applying stipulated processes to the information and supplying results of these processes; and (b) any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process. 18. How printout is admissible has been examined by this Tribunal in the case of Agarvanshi Aluminum Limited vs. CC, Nahvasheva (299) ELT 83 (Tri.-Mum.), wherein this Tribunal has observed as under:- 12 . From the above provisions, it is clear that for admissibility of computer printout there are certain conditions have been imposed in the said section. Admittedly condition 4C of the said section has not been complied with and in the case of Premier Instruments Controls (supra) this Tribunal relied on the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s namely M/s. Vee Kay and those matters travelled upto this Tribunal and this Tribunal after considering the evidence placed on record observed as under: 5. Heard the parties and considered the submissions. I find that the charge of clandestine removal has been alleged against the appellant on the basis of record retrieved from the computer seized from Shri Atul Gupta, Director of M/s. Vee Kay Concast Private Limited. There is no other evidence available on record to show that the appellant was engaged in the activity of clandestine removal of the goods. No corroboration of evidence has been made by the Revenue to substantiate the allegation of clandestine removal. Moreover, no statement of transporter is recorded and no mode of payment is determined by the Revenue while investigating the case. All the more, during course of investigation, nothing adverse was found against the appellant and the appellant has made a categorical statement that they have not supplied any goods without cover of invoice. In that circumstances, without any positive evidence of clandestine removal of goods, the charge of clandestine removal against the appellant is not sustainable. In that c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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