TMI Blog2020 (1) TMI 479X X X X Extracts X X X X X X X X Extracts X X X X ..... aterial. Further, the entries found in the private diaries were only for the period Jan 2001 to Sep 2001 i.e. eight months - On facts as stated and under the circumstances, there are no hesitation to hold that the order of the Ld. Commissioner is in accordance with law and is upheld and hence the Department Appeal is devoid of any merits. In the case of Good Kare Medico Pvt. Ltd. Vs. CCE [2018 (10) TMI 1199 - CESTAT ALLAHABAD] , it is held that order based on rough entries made in two sheets recovered from Director s residence in his own handwriting, when there is no other corroborative evidence, hence merely on the basis of such rough entries without corroborative evidence, clandestine activities cannot be alleged. Since in the instant case the duty demand of ₹ 13,36,476/- is upheld by Ld. Commissioner merely on the basis of entries in the private diary maintained by the Managing Director who never confessed the guilt and whose statement is not tested in accordance with Section 9D of the Central Excise Act, 1944. The Appeal filed by Sri Hari Krishna Budhia, Managing Director and Sri A.D. Singh, Authorised Signatory challenging imposition of penalty under Rule 209A o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded form Sri Hari Krishna Budhia, M.D., Sri P. S. Mishra, Sri S. K. Jaiswal, Sri A. D. Singh and Sri M. Srinivas, all employees of the assessee company. Further, statements were also recorded from four numbers of buyers i.e. M/s. K Steel, M/s. Stan Commodities, M/s Ravi Hi-Tech Limited and M/s. Bharat Ingots and Steel Pvt. Ltd. in respect of entries for those 8 months found in the private diaries. 3. On the basis of the aforesaid investigations Show Cause Notice dated 27-03-2002 was issued by Ld. Commissioner, Ranchi invoking extended period of limitation alleging that the assessee has resorted to undervaluation of their final products i.e. Silico Manganese on the ground that as they have never manufactured Silico-Manganee Chips but have only manufactured Silico-Manganese Lumps and thereby cleared those lumps in the guise of chips during 1997-98 to 2001-02 and have short paid central excise duty of ₹ 2,34,62,483/- by resorting to undervaluation. Further, on the basis of entries found in the private diaries (kucha entries) for the period 12-01-2001 to 05-09- 2001 (almost 8 months) it is alleged that the assessee has short paid duty of ₹ 13,36,476/- resor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PMT for Silico Manganese and therefore quoting lower rates of ₹ 5000/- per metric tonne for the same final product in the succeeding year reveals that there was undervaluation. It is submitted that Sri Hari Krishna Budhia, Managing Director, in his statement has agreed to pay the differential duty as per figures in the private diary. He further refers to the decision of this Tribunal dated 21-09-2017 vide Order No. F.O/77425-77426/2017 in the case of Bihar Foundry Castings Ltd. vs. Commissioner of Central Excise, Ranchi in Appeal No. E/173 174/2006 which were based on the same investigation and entries in the same private diary wherein this Tribunal has upheld the duty demand and penalty on the assessee. However, the personal penalty on Sri H.K. Budhia was reduced. The Ld. AR further relies on the judgment of the Allahabad High Court in the case of Somani Iron and Steels Ltd. vs. CESTAT reported in 2011 (270) E.L.T. 189 (All.) and judgment of the Hon ble Madras High Court in the case of Lawn Textile Mills P. Ltd. Vs. CESTAT reported in 2018 (362) E.L.T. 559 (Mad.). 8. Shri Kartik Kurmy, the learned Advocate appearing on behalf of M/s. Gautam Ferro Alloys, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ari Krishna Budhia recorded on 15-11-2001, in which it is stated by him that Silico-Manganese Chips are contaminated with slag. In respect of a specific query about the entries in the diary he stated that he has no idea but if any duty is determined, the assessee will bear the same. He further stated that it is late in the evening and he is a heart patient under constant medical attention and he has to travel back from Jamshedpur to Ranchi. The Ld. Advocate took us through the medical prescriptions of Dr. S.C. Jain, M.D., Appollo Hospital dated 03-11-2001 to demonstrate the cardiac ailment of Sri Budhia. He further took us to the Discharge Summary of Appollo Hospital as per which Sri Budhia was admitted on 18-11-2001, underwent bypass surgery on 19-11-2001 and was discharged on 29-11-2001. The Ld. Advocate submits that while tendering his deposition on dated 15-11-2001 Sri Hari Krishan Budhia, M.D., just 4 days before his bypass surgery, he was not in a physical and mental state to tender deposition and therefore without testing his statement in accordance with Section 9D of the Central Excise Act, 1944 the said statement cannot be a relevant piece of material. The Ld. Advocate rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merits. 11. We find that in the Impugned Order, the Ld. Commissioner has confirmed duty demand of ₹ 13,36,476/- under Para 60 on the basis of 40 entries in the private diary as per which the appellant assessee supplied goods to buyers Bal Mukund, Ganesh Foundry, Mongia, etc. who were never identified or examined to cull out evidence. Under Para 61, statement of Sri A.K. Sheel, Authorised Signatory of M/s. K. Steel and Sri Shankar Baksh Singh Chouhan, Authorised Signatory of M/s. Stan Commodities is relied upon by Ld. Commissioner. We have gone through the statements of the said two buyers. In their statements they have nowhere accepted payment of any amount over and above the invoice price to the assessee. In the case of Hunsur Plywood Works Pvt. Ltd. vs. CCE cited supra, the Tribunal has held that in absence of flow back of additional consideration, the allegation of clearance of goods of higher value in the guise of lower value is not sustainable. In the case of Sharma Chemicals vs. CCE cited supra, the Tribunal under Para 14 has held that entries in the private notebook may give rise to suspicion but that is not sufficient to uphold the allegations in absen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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