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TMI Blog2021 (11) TMI 655X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Act, 1944. 2. I appropriate the amount of Rs. 8,25,000/- (Rupees Eight Lakhs Twenty Five Thousand Only), already paid, during investigation, in terms of Section 11A(2) ibid. 3. I order for charging the interest at appropriate rate under Section 11AB ibid. 4. I impose equal penalty of Rs. 56 69 5651/- (Rupees Fifty Six Lakhs Sixty Eight Thousand Five Hundred & Sixty Five Only) in terms of Section 11 AC ibid for the contravention of various provisions of Central Excise Rules, 2002, stated hereinabove. However, the penalty may be reduced to the extent of 25% of the amount of penalty imposed in terms of first proviso to Section 11AC ibid, subject to the payment of duty and applicable interest within 30 days from the date of communication of the order, if the 25% penalty amount is also paid within 30 days. 5. I impose a penalty of Rs. 5,00,000/- (Rupees Five Lakhs only) each on Shri Suresh Mittal & Shri Satyanarayan R. Agarwal, both directors of M/s. ISSPL, and Rs. 2,00,000/- (Rupees Two Lakhs Only) each on Shri Vijay Kumar Jindal, Shri Vijay Kumar Mahavir Prasad Mittal and Shri Ajay Kumar Baheti, all three Ingot brokers, and M/s. SSIPL, for their all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d at their factory to Appellant 2, and during the period July 2006 to Dec'2006, had clandestinely manufactured and cleared 1782.425 M.T. of M. S. Ingots valued at Rs. 3,47,33,855/- to M/s. SSIPL, which attracted Central Excise duty amounting to Rs. 56,68,565/- Rs. 55,57,417/- B.E.D. + Rs. 1.11.148/- Edu. Cess. 2.5 A show cause cum demand notice dated 26.11.2008 was issued to Appellant 2 by the Additional Director General, DGCEI, Zonal Unit, Mumbai,- * proposing a recovery of Central Excise duty amounting to Rs. 56,68,565/- (Rs. 55,57,4177- B.E.D. + Rs. 1,11,148/- Edu. Cess] towards clearances of M.S. Ingots during the period July 2006 to Dec'2006, in terms of proviso to Section 11A (1) of the Central Excise Act, 1944 by invoking the extended period of limitation, as the entire activities were kept concealed and surreptitious with an intent to evade the payment of substantial amount of duty. * appropriation of Rs. 8,25,000/- deposited during investigation by the Appellant 1, towards demand of Central Excise duty. * for charging the interest under Section 11AB of the Central Excise Act, 1944 was made. * to impose penalty under Section 11AC ibid read with Rule 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the brokers named in the Show Cause Notice or the Appellant 1. The entire allegation is based on the forced statement of Shri Suresh Mittal, Director of the Appellant dated 23.01.2007 which was retracted on 24.01.2007 and 31.05.2007 which was retracted on 01.06.2007 and the statement of Shri. Satyanarayan Agarwal, Director of the Appellant dated 31.05.2007 which was retracted on 01.06.2007. * The Appellant was forced to make part payment The copy of the Challan is annexed at page 167 of Appeal Memo. * The department has relied upon the statement of broker Shri. Vijay Kumar Jindal (Appellant 5), Vijay Mahavir Mittal (Appellant 6) and Ajay Kumar Baheti (Appellant 7) who had allegedly brokered the transaction pertaining to sale of M.S. Ingots clandestinely to Appellant 2. The Appellant sought cross examination of the said brokers in their reply dated 04.08.2009 to the Show Cause Notice. Out of three brokers only Mr. Ajay Kumar Baheti appeared fro cross examination who has categorically stated in his statement dated 03.07.2008 that he was not aware about the transaction. He has duly deposed in his cross examination on 04.08.2009 that he cannot comment whether the consignment we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that the directors has not violated any of the provision of Central Excise Act or Rules so as to impose penalty under Rule 26 of Central Excise Rule 2002. There is no evidence put forth for in Show Cause Notice which justify the confirmation of penalty against directors of Appellant in as much as there has been no clandestine removal from Unit and it has not also been brought out in Show Cause Notice as to what role was played by them wherein he has reasonable belief that such excisable goods would be liable for confiscation under Rule 25 of Central Excise Rule 2002 so as to invoke provision under Rule 26 of Central Excise Rules, 2002. * In so far as Appellant 4 is concerned he has expired and as such no penalty can be imposed upon him. * He relies on the following decisions in support of the arguments made. S No Judgment Proposition Para No. 1 Andaman Timber Industries [2015 (324) ELT 641 (SC)] Reliance on the statement of witnesses who did not appear for cross examination is a serious flaw which makes the order nullity in as much as it amounts to violation of principle of natural justice. 6 & 7 2 Arya Fibres Pvt. Ltd [2014 (311) ELT 529& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e purchasing the inputs for their final product CRT Bars etc. viz. Ingots through brokers as well as directly from Appellant 1 and he also gave the names of the brokers (at pg.830 of Appellants' Compilation) and that the entries were written by him and his father only. He admitted in answer to question 6 (page 833 of Appellants' Compilation) that some of the transactions pertaining to sale and purchase were not reflected in their books of account of the said concern. (para 3.3.1 of Annexure of the SCN) * On 2/1/2007 - He admitted that the purchases from Silvar Ispat, Bhavaskti and Appellant 2 were through brokers as well as directly. He had gone through record no 23 and he admitted the entries therein. He requested that his statement may be recorded on the next date (para 3 3 2 of Annexure I of the SCN) * On 5/1/2007 he had gone through the above said record no.23 and 24 and stated that some of the consignments appearing in the record were received with Central Excise invoice and that the same were recorded in their books of accounts. He informed that around 1864.496 Mts quantity received with Central Excise invoice and 7426.530 MT was received without invoices, while 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereafter enquiries were made with rolling mills, thereafter the concerned plant directly sent the material to the Rolling mills without payment of C. Ex. duty, that he used to send his person to the Rolling Mills office for collecting the cash against 'without bills' deliveries. He gave all the details for 'without bill transactions (para 5.5.2 of Annexure l of the SCN). These consignments are reflected in Annexure II to SCN. * Appellant 6, on 10/1/2007 (page 933-936 of Appellants' compilation) gave his statement in Hindi and admitted that 8 consignments of MS Ingots from Appellant 1 without C.Ex. invoices sold by him to Appellant 2. (para 5.5 of Annexure I to SCN) The chart annexed to his statement giving details of such consignments (page 936 of Appellants' compilation) is as below. (These are reflected in Annexure Il to SCN) Sr. No. in Ann. Il to SCN Date Quantity Seized record no./page Page no. of Appellants' Compilation 63 10.07.06 16.08 23/16 574 64 11.07.06 15.835 23/16 574 65 11.07.06 15.86 23/16 574 66 15.08.06 9.74 23/48 591 67 15.08.06 9.78 23/48 591 68 18.08.06 9.75 23/47 590 69 18.08.06 9.64 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the consignments were routed through him. That he cannot comment whether the consignments were duty paid or without duty paid. Since, he admitted the consignments shown in the records were cleared from Appellant 1, it is their duty to show the evidence that the said consignments were duty paid. He also said that whatever he stated in the statements was true (para 3 of OIO - internal page 13 of OIO). * Following decisions are relied in support * Muddasani Venkata Narsaiah (D) Th. Lrs. [(2016) 12 SCC 288] (para 16) * In Hindustan Spg. and Wvg. Mills Ltd. [2007 (4) Bom CR 568, (2008) ILLJ 243 Bom, 2007 (5) MhLj 801]. (para 84) * Paulmeli Vs State of Tamil Nadu in Criminal Appeal No. 1636 of 2011 (para 11) * The cross examinations of Appellant 5 and Appellant 6 were allowed but they did not attend the same on 17/8/2009 and 18/9/2009 (as per para 5.10 of OIO), in terms of Section 9D of Central Excise Act, where a person's presence cannot be obtained without delay or expense, the statement can be admitted in evidence. * Appellants claim that the Statements of Appellant 3 and Appellant 4 were retracted. The Original Adjudicating Authority in para 5.8 of OIO, had dealt w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is covered by earlier show cause notice and there is overlap he relies on following decisions * Maldhari Sales Corporation [2016 (334) E.L.T. 418 (Del.)] (para 18,20) * Peico Electronics and Electricals Ltd. [1994 (71) E.L.T. 1053 (Tribunal)](para 47-49) * LSM Exports [(2015 (315) E.L.T. 407 (Del.)] (para 4) * D.C.W. Limited [(1988 (35) E.L.T. 167 (Tribunal)] (para 8) * Jocil Ltd. [2008 (226) E.L.T. 8 (S.C.)]( para 1-4) * Creative Cosmetics [1993 (63) E.L.T. 348 (T)]( para 27) * Peico Electronics and Electricals Ltd. [1994 (71) ELT 1053 (T)]]( para 46,47,49) * M.M. Cylinders (P) Ltd, [ 2012 (277) E.LI, 78 (T -Bang.) (para 10.3-10.4) * B.P.L. India Ltd. [2002 (143) E.L.T. 3 (S.C.) (para 17) * Ashwini Kumar [(2018) 3 SCC 308] (para 19) * The records evidence the transactions between Appellant 1 and Appellant 2 for which Appellants could not produce any valid duty paying documents. The clandestine removal was accepted by the Directors of Appellant 1 and Appellant 2. Brokers also admitted the transactions. * As to the other Appellants and their appeals, they have filed appeals against the penalties imposed on them. It is evident from the evidence detailed in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reader has also to be borne in mind, for the perception on that score is imperative. e) Language should not be rhetoric and should not reflect a contrived effort on the part of the author. (f) After arguments are concluded, an endeavour should be made to pronounce the judgment at the earliest and in any case not beyond a period of three months. Keeping it pending for long time, sends a wrong signal to the litigants and the society. (g) It should be avoided to give instances, which are likely to cause public agitation or to a particular society. Nothing should be reflected in the same which may hurt the feelings or emotions of any individual or society." 4.2 In view of the above observations made by the Apex Court we are not inclined to refer to all the decisions cited by both the sides but will be referring to only those which are relevant for deciding the issue. 4.3 The facts in the present case are that during the search conducted at the premises of Appellant 2, certain documents were recovered/ retrieved, which showed the that he was indulging in clandestine clearance of goods, and was also receiving the raw material for the manufacture of such fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . flow back of money to M/s. ISSPL. 5.3. The case is built up on the basis of information contained in the private note books / collection books / chits recovered during the searches from various places, mentioned below: (a) Relating to procurement of raw materials unaccountably by M/s. ISSPL 1) Admission by Shri Suresh Mittal, Director - M/s. ISSPL in his statement dated 23.01.2007 for receipt of M. S. Scrap. 2) Admission by Shri Satyanarayan Agarwal, Director - M/s. ISSPL in his statement dated 31.05.2007 for receipt of M. S. Scrap. (b) Relating to sale of M. S. Ingots (finished goods) 'without bills' by M/s. ISSPL: 1) Two Note Books containing entries of transactions (seized record no. 23 & 24) and one Cash Book of receipts & payments (seized record no. 26) recovered from the office premises of M/s. SSIPL located at New Darukhana, Mumbai on 18.12.2006, where Shri Pravesh Gautam, Director - M/s. SSIPL was present. 2) Two collection books for the years 2005-06 & 2006-07 (seized record No.1& 2), recovered from the possession of Shri Faruk Shaikh, Broker, during search conducted at the office premises of M/s SSPL, located at Kharbanda Park ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... page nos. 7, 16, 21, 34, 44, 48, 54, 59, 64, 65, 74, 87, 97, 103, 114, 121, 142, 153, 163, 167, 170 & 172 of seized record no. 23 and page nos. 21, 25 & 38 of record no. 24, as deciphered by Shri Pravesh Gautam. Further, on interrogation, Shri Pravesh Gautam, Director - M/S. SSIPL, in his statements dated 18.12.2006, 05.01.2007, 06.05.2008 & 07.05.2008, admitted that he had procured 1782.425 MTs of M. S. Ingots without bills in cash from V s. ISSPL through above named brokers. The said Ingots (except to the quantity of +7.775 MTs of M. S. Ingots, which were traded through one broker Shri Madhu Singh Parmar) were consumed in their factory for production of M. S. Bars, which were subsequently cleared clandestinely. Same deposition was averred by Shri Suresh Mittal and Shri Satyanarayan Agarwal, both directors of M/s. ISSPL, in their respective statements, admitting the facts that they had cleared M. S. Ingots surreptitiously without bills to M/s SSPL. It is lucid that clandestine removal is juxtaposed to clandestine manufacture. Without ones, the existence of other is not conceptual. The said clearance were effected through Shri Vijay Kumar Jindal, Shri Vijay Kumar Mahavir Prasad M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lue, when transactions are effected with ulterior motives and malafide intention. 5.7. The sum and substance of the discussion at Para 5.4., 5.5. & 5.6, hereinbefore, is that M/s. ISSPL were indulged in illicit & malice trade activities and they had surreptitiously manufactured and cleared M. S. Ingots to M/s. SSIPL, and thus the three legs of clandestine manufacture and clearance are grounded well." 4.5 Appellant 1 contended that the case is based on the documents which were recovered from the premises of third party and have not been corroborated by any other source. True the case is based on the three note books/ diaries which were recovered from the premises of the Appellant 2, however we find that during the course of investigation these documents were shown to the Directors of Appellant 1 (Appellant 3 and 4). In their statements the Directors have admitted about the facts stated in the said documents. The statements of the director wherein they have admitted the entries that have been taken from the documents recovered from the premises of M/s Salasar Ispat are reproduced below: 4.5.1 Statement of Shri Satyanarayan Ruliram Agarwal Aged 50 years Occupation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uresh Mittal, I have put my dated signature on the aforesaid statement in token of having seen and read the same. I agree and confirm all his depositions made thereunder as true and correct. I confirm that Shri Suresh Mittal was looking after the sales, purchases and receiving as well as remitting payments of the company till end of March 2007. Since April 2007, I am looking after the entire business affairs of the company. During the period till March 2007, I was looking after all the work related to the factory/ Plant i.e. receipts of raw material in the factory, Production and dispatches of the finished goods viz, M.S.Ingots to the customers, which included transportation of the goods to be dispatched. On being asked about the arrangement of the transportation and the despatch of the M.S Ingots cleared without payment of Central Excise duty from our factory to M/s Shri Salasar Ispat Pvt. Ltd., I state that such without bill transactions were done by me with the brokers as well as directly to the customers. I agree that the total quantity of 1782.425 MT of M.S.ingots have been cleared by M/s. Ishu Super Steels Pvt. Ltd. from our factory to M/s. Shri Salasar Ispat Pvt. Ltd. Nashik ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbai - 400 009 where all the work relating to sale, purchase, accounts, payments etc. are done. On being asked about my educational qualification, I state that I am commerce graduate. The names of the other directors are Shri Satyanarayan Agrawal, Shri Suresh Agrawal and Shri Mohit Sarlia. This company is engaged in the manufacturing of Iron and Steel articles namely M.S. Ingots. For the manufacture of M.S. Ingots, the main raw materials are M.S. Scrap, Sponge Iron, Pig Iron etc. I further state that M.S. Scrap is procured locally whereas Sponge Iron and Pig Iron is procured from Raipur based units. On being asked about the manufacturing process, I state that these raw materials are melted in the electric furnace and M.S. Ingots are manufactured by pouring melted iron in the moulds. On being asked about the procedure for sale of M S Ingots, I state that the sale of M.S. Ingots is done mainly through brokers and sometimes directly by me or Shri Satbir Sarlia, who is father of the other director of the company i.e. Shri Mohit Sarlia. Shri Satbir Sarlia is my distant relative also. In this regard, I further state that first we ascertain the rate at which the M.S. Ingots are sold in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ravesh Gautam for such without bill clearances. On being asked to submit the details of the transportation of such without bill clearances, I state that the local vehicles are used on the requirement basis, for such clearances and freight towards such clearances are paid by us in cash. I do not keep any record of the same. On being asked as to who look after the affairs of the factory at Nasik and who looks after such without bill' clearances at the factory, I state that the other directors namely Shri Satyanarayan Agrawal and Shri Suresh Agrawal look after the factory affairs and also manages such unaccounted clearances from the factory and myself and Shri Satbir Sarlia manage the purchase, sale and payment/collection of cash from rolling mills/brokers. Today, I have been shown the statements of Shri Pravesh Gautam, Director of M/s Shri Salasar Ispat Pvt. Ltd., recorded by the officers of DGCEI, Zonal Unit; Mumbai on 02.01.2007, 05.01.2007 and 06.01.2007. After carefully going through all the statements, I have put. my dated signature on the same in token of having seen and read the same. In this regard, I state that I fully agree with all the facts stated therein with rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nexure II prepared on the basis of the entries pertaining to my company in both the records mentioned above and I have carefully tallied all the entries in the charts with the corresponding entries in the said records. I find these entries to be in order. In this regard, I state that all the particulars entered in both the seized records pertaining to the transactions with my company, such as name of. company, quantity, rate, brokers. name, date and payment are mentioned correctly. Sometimes, the name of company is mentioned as Ishu' or 'Ishu Super' for M/s Ishu Super Pvt. Ltd. In a few cases where the broker's name is mentioned as 'Ladhaji' it is taken to stand for the broker named above i.e. Shri Ajay Baheti who is a relative of Shri Ladha. The consignments which are without bill' are identifiable by me from the rates mentioned. To collaborate I further state that all. negotiations for supply of goods were done on a without bill rate basis. Wherever no brokers name is mentioned, the transaction is directly negotiated with Shri Pravesh Gautam, Director of M/s Shri Salasar Ispat Pvt. Ltd., by either me or Shri Satbir Sarlia, I further state that whenever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Payment Ref No Basic 16% Edu cess 2% Date Amount 1 2 3 4 5 6 7 8 9 10 11 12 26.08.06 Ishu Super Direct 9.900 17900 177210 28354 567 28921 23/59 14.09.06 Ishu Super Direct 9.390 19900 186861 29898 598 30496 23/65 15.09.06 Ishu Super Direct 9.560 19900 190244 30439 609 31048 23/65 18.09.06 Ishu Super Direct 9.510 19900 189249 30280 606 30886 23/65 18.09.06 Ishu Super Direct 9.690 19900 192831 30853 617 31470 23/65 19.09.06 Ishu Super Direct 13.465 19900 267954 42873 857 43730 23/65 29.09.06 Ishu Super Direct 9.770 19900 194423 31108 622 31730 23/65 23.09.06 Ishu Super Direct 9.800 19900 195020 31203 624 31827 23/65 26.09.06 Ishu Super Direct 9.635 19900 191737 30678 614 31292 23/65 26.09.06 Ishu Super Direct 9.440 19900 187856 30057 601 30658 23/65 27.09.06 Ishu Super Direct 9.890 19900 196811 31490 630 32120 23/65 23.09.04 Ishu Super Direct 9.395 20225 190014 30402 608 31010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.06 950.00 23/142 31.10.06 Ishu Super J P Mittal 9.730 20500 199465 31914 638 32552 31.10.06 401000.00 23/142 31.10.06 Ishu Super J P Mittal 9.660 20500 198030 31685 634 32319 02.11.06 600000.00 23/142 02.11.06 Ishu Super J P Mittal 9.705 20500 198953 31832 637 32469 04.11.06 301500.00 23/142 02.11.06 Ishu Super J P Mittal 12.77 20500 261785 41886 838 42724 06.11.06 240000.00 23/142 02.11.06 Ishu Super J P Mittal 9.470 20500 194135 31062 621 31683 3090.00 23/142 02.11.06 Ishu Super J P Mittal 16.260 20500 333330 53333 1067 54400 2150.00 23/142 03.11.06 Ishu Super J P Mittal 9.605 20500 196903 31504 630 32134 10980.00 23/142 04.11.06 Ishu Super J P Mittal 9.390 20500 192495 30799 616 31415 10000000.00 23/142 04.11.06 Ishu Super J P Mittal 12.570 20500 257685 41230 825 42055 23/142 31.10.06 Ishu Super J P Mittal 15.170 20500 310985 49758 995 50753 23/142 31.10.06 Ishu Super J P Mittal 9.640 20500 197620 31619 632 32251 23/142 15.11.06 Ishu Super I.addhaji 9.700 20200 195940 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.300 18650 471845 75495 1510 77005 07.07.06 400000.00 23/7 07.01.06 Ishu Super Vijay Jindal 16.430 18650 306420 49027 981 50008 08.07.06 525046.00 23/7 07.06.06 Ishu Super Vijay Jindal 23.525 18650 438741 70199 1404 71603 08.07.06 300000.00 23/7 07.07.06 Ishu Super Vijay Jindal 9.820 18650 183143 29303 586 29889 10.07.06 600000.00 23/7 07.07.06 Ishu Super Vijay Jindal 9.660 18650 180159 28825 577 29402 11.07.06 750000.00 23/7 16.07.06 Ishu Super Vijay Jindal 9.660 18200 175812 28130 563 28693 19.07.06 697000.00 23/21 19.07.06 Ishu Super Vijay Jindal 9.685 18200 176267 28203 564 28767 25.07.06 950000.00 23/21 19.07.06 Ishu Super Vijay Jindal 9.535 18200 173537 27766 555 28321 26.07.06 500000.00 23/21 19.07.06 Ishu Super Vijay Jindal 9.810 18200 178542 28567 571 29138 22.07.06 600000.00 23/21 20.07.06 Ishu Super Vijay Jindal 9.385 18200 170807 27329 547 27876 23/21 22.07.06 Ishu Super Vijay Jindal 9.980 18200 181636 29062 581 29643 23/21 22.07.06 Ishu Super Vijay Jindal 9.490 18200 172718 27635 553 28188 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nbsp; 23/48 14.08.06 Ishu Super Vijay Jindal 9.615 18700 179801 28768 575 29343 23/48 14.08.06 Ishu Super Vijay Jindal 9.640 18700 180268 28843 577 29420 23/48 15.08.06 Ishu Super Vijay Jindal 9.310 18700 174097 27856 557 28413 23/48 16.08.06 Ishu Super Vijay Jindal 9.900 18700 185130 29621 592 30213 23/48 17.08.06 Ishu Super Vijay Jindal 9.690 18700 181203 28992 580 29572 23/48 17.08.06 Ishu Super Vijay Jindal 9.960 18700 186252 29800 596 30396 23/48 18.08.06 Ishu Super Vijay Jindal 9.660 18700 180642 28903 578 29481 23/48 23.08.06 Ishu Super Vijay Jindal 9.510 18800 178788 28606 572 29178 23.08.06 971250.00 23.54 23.08.06 Ishu Super Vijay Jindal 9.475 18800 178130 28501 570 29071 25.08.06 700000.00 23.54 25.08.06 Ishu Super Vijay Jindal 9.335 18800 175498 28080 562 28642 26.08.06 400000.00 23.54 25.08.06 Ishu Super Vijay Jindal 9.445 18800 177566 28411 568 28979 28.08.06 700000.00 23.54 25.08.06 Ishu Super Vijay Jindal 9.415 18800 177002 28320 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ishu Super Vijay Jindal 12.430 20400 253572 40572 811 41383 23/114 10.11.06 Ishu Super Vijay Jindal 9.905 20400 202062 32330 647 32977 23/114 10.11.06 Ishu Super Vijay Jindal 9.485 20400 193494 30959 619 31578 23/114 14.10.06 Ishu Super Vijay Jindal 25.590 20400 522036 83526 1671 85197 23/144 18.10.06 Ishu Super Vijay Jindal 11.400 20400 232560 37210 744 37954 23/144 16.10.06 Ishu Super Vijay Jindal 9.445 20400 192678 30828 617 31445 23/144 18.10.06 Ishu Super Vijay Jindal 12.645 20400 257958 41273 825 42098 23/144 29.11.06 Ishu Super Vijay Jindal 12.010 20200 242602 38816 776 39592 23/172 29.11.06 Ishu Super Vijay Jindal 12.555 20200 253611 40578 812 41390 23/172 29.11.06 Ishu Super Vijay Jindal 14.755 20200 298051 47688 954 48642 23/172 29.11.06 Ishu Super Vijay Jindal 9.415 20200 190183 30429 609 31038 23/172 30.12.06 Ishu Super Vijay Jindal 9.575 20200 193415 30946 619 31565 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp; 23/96 343/29.09.06 659 28.09.06 Ishu Super Steel Pvt Ltd 01.10.06 Ishu Super Direct 9.640 20625 198825 31812 636 32448 30.09.06 300000.00 23/97 346/11.10.06 654 30.09.06 Ishu Super Steel Pvt Ltd 01.10.06 Ishu Super Direct 9.630 20625 198619 31779 636 32415 03.10.06 1706940.00 23/97 345/01.10.06 653 30.09.06 Ishu Super Steel Pvt Ltd 02.10.06 Ishu Super Direct 9.705 20625 200166 32027 641 32668 23/97 350/02.10.06 659 01.10.06 Ishu Super Steel Pvt Ltd 02.10.06 Ishu Super Direct 9.800 20625 202125 32340 647 32987 23/97 348/02.10.06 655 03.10.06 Ishu Super Steel Pvt Ltd 02.10.06 Ishu Super Direct 9.700 20625 200063 32010 640 32650 23/97 349/02.10.06 656 03.10.06 Ishu Super Steel Pvt Ltd 11.10.06 Ishu Super Direct 9.710 20625 200269 32043 641 32684 23/97 359/04.10.06 666 03.10.06 Ishu Super Steel Pvt Ltd 15.10.06 Ishu Super Direct 9.885 21000 20758 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Super Steel Pvt Ltd 12.11.06 Ishu Super Direct 16.570 20400 338028 54084 1082 55166 15.11.06 400000.00 23/153 412/10.11.06 774 10.11.06 Ishu Super Steel Pvt Ltd 13.11.06 Ishu Super Direct 9.590 20400 195636 31302 626 31928 15.11.06 164350.00 23/153 415/13.11.06 783 12.11.06 Ishu Super Steel Pvt Ltd 13.11.06 Ishu Super Direct 9.865 20400 201246 32199 644 32843 3135.00 23/153 416/13.11.06 785 13.11.06 Ishu Super Steel Pvt Ltd 14.11.06 Ishu Super Direct 11.945 20400 243678 38988 780 39768 12000.00 23/153 418/14.11.06 786 13.11.06 Ishu Super Steel Pvt Ltd 14.11.06 Ishu Super Direct 11.530 20400 235212 37634 753 38387 2150.00 23/153 420/14.11.06 790 13.11.06 Ishu Super Steel Pvt Ltd 14.11.06 Ishu Super Direct 14.360 20400 292944 46871 937 47808 23/153 419/14.11.06 788 13.11.06 Ishu Super Steel Pvt Ltd 14.11.06 Ishu Super Direct 9.835 20100 197684 31629 633 32262 23/153 &n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Direct 13.005 19900 258800 41408 828 42236 23/167 453/23.11.06 824 22.11.06 Ishu Super Steel Pvt Ltd 23.11.06 Ishu Super Laddhaj i 9.715 20300 197215 31554 631 32185 29.11.03 349500.00 23/170 451/23.11.06 822 22.11.06 Ishu Super Steel Pvt Ltd 23.11.06 Ishu Super Laddhaj i 9.630 20300 195489 31278 626 31904 01.12.06 700000.00 23/170 452/23.11.06 823 22.11.06 Ishu Super Steel Pvt Ltd 25.11.06 Ishu Super Laddhaj i 10.870 20300 220661 35306 706 36012 23/170 458/26.11.06 635 25.11.06 Ishu Super Steel Pvt Ltd 25.11.06 Ishu Super Laddhaj i 12.195 20300 247559 39609 792 40401 23/170 457126.11.06 834 25.11.06 Ishu Super Steel Pvt Ltd 26.11.06 Ishu Super Laddhaj i 11.630 20300 236089 37774 755 38529 23/170 460/27.11.06 838 26.11.06 Ishu Super Steel Pvt Ltd 28.11.06 Ishu Super Laddhaj i 14.160 20300 287448 45992 920 46912 23/170 466/28.11.06 843 27 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 90 634 32324 5.12.06 516000.00 24/25 868 06.12.06 Ishu Super Steel Pvt Ltd 06.12.06 Ishu Super Laddhaj i 12.445 20200 251389 40222 804 41026 24/25 875 08.12.06 Ishu Super Steel Pvt Ltd 09.12.06 Ishu Super Laddhaj i 13.085 20200 264317 42291 846 43137 24/25 874 08.12.06 Ishu Super Steel Pvt Ltd 09.12.06 Ishu Super Laddhaj i 12.300 20200 248460 39754 795 40549 24/25 877 10.12.06 Ishu Super Steel Pvt Ltd 11.12.06 Ishu Super Laddhaj i 12.810 20200 258762 41402 828 42230 24/25 878 10.12.06 Ishu Super Steel Pvt Ltd 11.12.06 Ishu Super Laddhaj i 15.590 20200 314918 50387 1008 51395 24/25 883 14.12.06 Ishu Super Steel Pvt Ltd 16.12.06 Ishu Super Direct 9.340 20850 194739 31158 623 31781 24(38 884 15.12.06 Ishu Super Steel Pvt Ltd 881.210 17807009 284 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cash were made by Shri Pravesh Gautam directly to Shri Satyanarayan Agrawal at our Nashik factory. I further state that as regards transportation of such without bill M.S. Ingots cleared to M/s Shri Salasar Ispat Pvt. Ltd., from our factory, I wish to state that it was always arranged by Shri Satyanarayan Agrawal. Now, I have been shown record no. 26 seized from the premises of M/s Shri Salasar ispat Pvt. Ltd. on 18.12.2006 under panchanama. After carefully going through all the entries in the said record, I have put my dated signature on the first and last page of the same in token of having seen the same. In this connection I wish to state that payments against without bill supplies of M. S. Ingots made by us to M/s Shri Salasar Ispat Pvt. Ltd. were received in cash by either our broker or by us. I confirm that the entries in the said record pertaining to payments made in cash to us or our brokers are correct and we have indeed received the payments on the given date in cash against our without bill supplies from Shri Pravesh Gautam or through our brokers. On being asked to explain the reasons for appearing our company's name on the receipts side of this seized record which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces of goods without payment of duty. I deny all the allegation. Therefore, I request please do not rely on the my statement as it is the forced statement and not voluntary. They have not even checked checked our records before making allegation. Yours Faithfully ISHU SUPER STEEL PVT.LTD DIRECTOR Suresh Mittal (Director) ISHU SUPER STEEL PVT.LTD UNDER POSTAL CERTIFICATE TO THE DIRECTOR GENERAL OF CENTRAL EXCISE INTELLIGENCE 8, WEST BLOCK, WING NO.-6 R K PURAM, NEW DELHI FROM:- SURESH MITTAL (DIRECTOR) ISHU SUPER STEEL PVT.LTD PLOT NO. D-6, S.T.I.C.E.SINNAR NASHIK, MAHARASHTRA To, The Director General Central Excise & Customs 8, West Block R K Puram, New Delhi. Sir, Once again, I was called by officers of the DGCEI Bellard Estate Mumbai for recording and confirmation of the statement which already. I have denied by my retraction dt.23.01.2007. Although I have deposited Rs. 8.25 lacs under protest & as per directive of the officers, but the officers were making pressure for more payment to be made, I have denied them that the company is not in position to make payment, And we did not paid other than the above. And categorically I denied a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iaries which related to clearances made by the appellants. 4.5.7 On the issue of retraction of statement Commissioner has observed as follows: "5.8. Now coming to the point of retraction to the statements recorded, I find that mere retraction of confession is not sufficient to make confessional statement irrelevant, as is held by the Hon'ble Supreme Court in the case of Vinod Solanki Vs.U.O.I. [2009 (13) S.T.R. 337 (S.C.). The apex court further held that the court must bear in mind the attending circumstances, time of retraction, nature and manner of retraction and other relevant factors to arrive at a finding on voluntary nature of the statement or otherwise and if evidence brought by confession if retracted must be corroborated by other independent and cogent evidence. In this case, I find that the depositions were retracted at a later stage without bringing any contrary evidence to their confessions made earlier. Further, the manner of retraction also appears to ambiguous as Shri Suresh Mittal, Shri Satyanarayan Agarwal and Shri Parvesh Gautam didn't bring out any concrete evidences to support their cause of retraction. Also, no materials were brought on records as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1973. Therefore it is a material piece of evidence collected by Customs officials under Section 108 of the Customs Act. That material incriminates the petitioner inculpating him in the contravention of the provisions of the Customs Act. The material can certainly be used to connect the petitioner in the contravention inasmuch as Mr. Dudani's statement clearly inculpates not only himself but also the petitioner. It can, therefore, be used as substantive evidence connecting the petitioner with the contravention by exporting foreign currency out of India. Therefore we do not think that there is any illegality in the order of confiscation of foreign currency and imposition of penalty. There is no ground warranting reduction of fine. 4.5.9 In case of Surjeet Singh Chabbra [1997 (89) ELT 646 (SC)] Hon'ble Supreme Court has held as follows: 2. It is contended by learned counsel for the petitioner that the petitioner is entitled to cross-examine the Panch witnesses and the Seizing Officer for the goods seized in contravention of the FERA & Customs Duty Act and that the opportunity has not been given. Therefore, it is violative of natural justice. 3. It is true that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on examination of the evidence finds that the retracted confession is true, that part of the inculpatory portion could be relied upon to base conviction. However, the prudence and practice require that Court would seek assurance getting corroboration from other evidence adduced by the prosecution. 26. In Naresh J. Sukhawani v. Union of India - 1996 (83) E.L.T. 258 (S.C.) = 1995 Supp. 4 SCC 663 a two-Judge Bench [to which one of us, K. Ramaswamy, J., was a member] had held in para 4 that the statement recorded under Section 108 of the Act forms a substantive evidence inculpating the petitioner therein with the contravention of the provisions of the Customs Act as he had attempted to export foreign exchange out of India. The statement made by another person inculpating the petitioner therein could be used against him as substantive evidence. Of course, the proceedings therein were for confiscation of the contraband. In Surjeet Singh Chhabra v. Union of India - 1997 (89) E.L.T. 646, decided by a two-Judge Bench to which one of us, K. Ramaswamy, J., was a member the petitioner made a confession under Section 108. The proceedings on the basis thereof were taken for confiscation of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n retraction. Further it is interesting to note that when so ever the Appellant 3 & 4 visited the post office for posting their letter retracting their statement, they used the same postal stamps bearing the picture of "Dr B R Ambedkar" for posting these letters. Further no proof has been shown in respect of the delivery of such retraction letters to the addressee. In case the Appellant 3 & 4 were serious about retracting their statements they would have posted these letters by "Registered Post with Acknowledgement Due" so that the proof of delivery of the said letters to the addressee was available for production in subsequent proceedings. In view of the above we do not find much merits in the submissions made by the appellants counsel regarding retraction of statements. Even if for a moment it is accepted that the statements were retracted, then also they being substantial piece of evidence duly corroborated by other evidences brought forward during the investigation can be relied upon for proceeding against the appellants as have been held by the above referred authorities. 4.6.1 Appellants Counsel submits against the reliance on the statements of broker who are co-notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar Baheti, the lone witness, came forward for the proceedings, details of which are narrated below: Cross-examination of Shri Ajay Kumar Baheti, Ingot Broker, on 04.08.2009: On being questioned, Shri Ajay Kumar Baheti stated that he had transacted around 500 M.T. of M. S. Ingots for M/s. ISSPL; that he never raised any bill for payment; that no bills for payment were routed through him; that he didn't collect payments in all cases; that the payment routed through him was in cash; that no excise invoices carrying the consignments were routed through him; that no discussion relating to idea mooted by Shri Satbir Sarlia and Shri Pravesh Gautam for part supply without bills' and part supply with bills', had taken place before him; that he didn't deal directly with either of the Directors of M/s. ISSPL; that he cannot comment whether the consignments were cleared with bills or without bills. Elaborating further, he stated that he was dragged to this business by Shri Satbir Sarlia, who knew his father-in-law Shri Laddha, and accordingly, he entered into this business with a purpose to get his commission in the course of transaction. On a specific question put by Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, he specifically stated that what has been said by him earlier in his statement is correct. 4.6.4 It is also worth pointing, that the persons sought to be cross examined were the co-noticee in the proceedings before the Commissioner, and are now co-appellant's as Appellant 5, Appellant 6 & Appellant 7 in the appellate proceedings before us. 4.6.5 Delhi bench of CESTAT, has in case of Jagdish Shanker Trivedi [2006 () ELT 290 (T-Del)] has held as under, in case where the co-noticee were called for cross examination but they did not turn up held the same not to be violation of principle of natural justice, and observed as follows: "8. We may also, recall here, the decision of the Supreme Court in Jethmal Pithaji v. Assistant Collector of Customs, Bombay reported in 1983 (13) E.L.T. 1524 (S.C.) = AIR 1974 SC 699 in which the Supreme Court held in paragraph 8 of the judgment that all the parts of a recorded statement of an accused are not entitled to equal credit. An inculpatory part of the statement could be accepted even though the exculpatory part of the statement of the accused was rejected. Where the inculpatory part of the statement of the accused is distinct an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticees by each one refusing to be cross-examined by resorting to Article 20(3) of the Constitution and simultaneously claiming cross- examination of the other co-noticees. We, therefore, hold that the appellants, including the appellant Ashish Kumar Chaurasia were not entitled to claim cross-examination as a matter of right. The appellant Ashish Kumar Chaurasia had, in fact, cross- examined two official witnesses and at the end, he had only sought for time for further hearing. The cross-examination made by the appellant, Ashish Kumar Chaurasia of two officers, A.K. Chaturvedi and Simon has been set out in the impugned order and it is recorded that, "various dates of personal hearing was given one after the other but neither Ashish Kumar Chaurasia nor his advocate turned up". It is clear from the record that the appellants had been given adequate opportunity of being heard in the matter pursuant to the show cause notice issued under Section 124 of the said Act, and there has not been any violation of the principles of natural justice." 4.6.6 Affirming this decision, Hon'ble Allahabad High Court [2015 (325) ELT 250 (ALL)] has held as follows: 12. From the findings of fact rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f his matter being taken up on the very same day and undertaken an empty formality of getting a denial from Shri Shashikant. Non- permitting of cross-examination of Shashikant by the adjudicating authority clearly appears to be on account of refusal of Shashikant for being cross-examined by anybody. The adjudicating authority under these circumstances could not have compelled him to come as witness for purpose of cross- examination. The observations of the said adjudicating authority are in confirmation to the provisions of law." 4.6.9 Tribunal has in case of Mayamahal Industries [1995 (80) ELT 118 (T)]held as follows: 4. The appellant, it is true, had asked for cross-examination of Shri Balinder Singh Sachhar. The Additional Collector has recorded in her Order at page-9 that the appellant had been informed that since Shri Sachhar was himself a noticee, it would not be proper to summon him to give evidence. The reason for this although not stated in the Additional Collector's Order is evident, that it would not be proper to put Shri Sachhar in a position where he might have to incriminate himself by giving evidence. This is clear when the Additional Collector goes on to say ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence. As it was held by three judge Bench of Hon'ble Apex Court in the case of State of Punjab v. Barkat Ram reported in 1962 (3) SCR 338 where Court has gone to the extent of holding that the confessions made to the Customs officers if voluntarily made, can be the sole basis of the conviction. 8. Though the appellant have taken the plea that both the witnesses were compelled to give the initial statement of acknowledging the guilt but they had subsequently retracted. This controversy was cleared by Supreme Court Bhagwan Singh v. State of Punjab reported in AIR 1952 (S.C.) 214 holding that even if it is a retracted [confession], it must first be tested whether [confession] is voluntary and trivial inculpating the accused in the Commission of the crime, if affirmative findings, even retracted [confession] can be recorded. The Apex Court clarified that to prove that the statement was not voluntary and was obtained by threat or duress the burden lies upon the accused. We observe that there is nothing on record till date to satisfy the adjudicating authorities that the statement/confessions of the Directors of the Company were however made under threat or duress. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sence of the appellants or should be allowed to be cross-examined by them on the statements made before the Customs Authorities. It was clarified that formal cross-examination was procedural justice and principles of natural justice did not require that there should be a kind of formal cross-examination. It was held that natural justice certainly includes that any statement of person before it is accepted against somebody else that the person should have an opportunity of meeting it whether by way of interrogation or by way of comments and assailing as the party charged as a firm and reasonable opportunity to see comment and criticisms. The evidence, statement or recorded on which the charge is being made against him the demands and test of natural justice are satisfied. This Tribunal in the case of Popular Carpet Industries v. Commissioner of Customs, Mumbai reported in 1996 (84) E.L.T. 244 has held that where a co-noticee did not agree to be examined he cannot be compelled to come as a witness for cross-examination. The Hon'ble High Court of Calcutta in the case of Tapan Kumar Biswas v. Union of India and Others reported in 1996 (63) E.C.R. 546 has held that where the proceedee w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, pre-ponderance of probability mechanism would come into play. Hon'ble Apex Court in the case of Bhanabhai Khalpabhai Vs. Collector of Customs (1994 (71) E.L.T. 3 (S.C.)] had held so. Further, in an identical case in respect of Lucky Dyeing Mills P. Ltd. Vs. CCE&C, Surat [2008 (222) E.L.T. 543 (TYI-Ahmd.), the Hon'ble Tribunal also held that the contention of corroborative evidence in the nature of procurement of raw material, electricity consumed etc. does not stand, inasmuch as the goods were sent without challan or documentary proof, payments were made in cash and delivery challans were torn, no evidence of any money transaction would be available being cash transaction - case sufficiently corroborated. In an another judgment delivered by the Appellate Tribunal in the case of Gulabchand Silk Mills Pvt. Ltd. Vs. CCE, Hyderabad-II (2005 (184) E.L.T. 263 (Tri Bang.)], the court held that "n any type of clandestine activity, the persons try their best not to leave any evidence, therefore, such persons cannot be expected to faithfully put the details of all such clearances in some register and append their signature - Hence, clandestine activity at best can be establi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s. SSIPL at Mumbai; on the contrary the said office premises belonged to M/s. Gautam Enterprises, whose proprietor is Shri Roshanlal Gautam (father of Shri Pravesh R. Gautam). This is absolutely an application of afterthought, as during the search of the said premises on 18.12.2006, Shri Pravesh R. Gautam was present there and has put his dated signature on the Search Warrant and panchnama, wherein, he categorically explained to the panchas (witnessing the panchnama proceedings) that the said premises is used as the office premises for M/s. SSIPL, M/s. Gautam Enterprises (his father Shri Roshanlal Gautam is the proprietor) and M/s. Shree Shiv Ganesh Parvati Steel (he himself is the proprietor). It is a fact that the contents of the said panchnama was never challenged. Therefore, now changing the stand is explicitly a case of an afterthought and with a view to deviate the investigation/ adjudication process. Therefore, the contention doesn't deserve for appreciation. 5.16. Case laws relied upon by the Noticee do not squarely support and substantiate their viewpoint. Situation gets changed by change in circumstances and facts and this change may cause a world of differenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 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 and validly cleared on payment of duty; (g) statements of buyers with some details of illicit manufacture and clearance; (h) proof of actual transportation of goods, cleared without payment of duty; (i) links between the documents recovered during the search and activities being carri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." Even in this case tribunal holds that each case of clandestine removal needs to be examined on the facts of the case under consideration, and not on the basis of the decisions rendered in the case of some other person. If on the basis of the evidences adduced which would be of the nature as enumerated at (ii) of para 40 of the said decision, the conclusions in relation to act of clandestine manufacture and clearance should be arrived at. In the instance case we find sufficient evidences as enumerated therein have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the person concerned in it. On the principle underlying Section 106, Evidence Act, the burden to establish those facts is cast on the person concerned : and if he fails to establish or explain those facts, an adverse inference of facts may arise against him, which coupled with the presumptive evidence adduced by the prosecution or the Department would rebut the initial presumption of innocence in favour of that person, and in the result prove him guilty. As pointed out by Best in `Law if Evidence' (12th Edn. Article 320, page 291), the "presumption of innocence is, no doubt, presumptio juris: but every day's practice shows that it may be successfully encountered by the presumption of guilt arising from the recent (unexplained) possession of stolen property," though the latter is only a presumption of fact. Thus the burden on the prosecution or the Department may be considerably lightened even by such presumption of fact arising in their favour. However, this does not mean that the special or peculiar knowle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have established the charge that he was either the thief or had received those stolen goods knowing them to be stolen. If his possession was innocent and lacked the requisite incriminating knowledge, then it will be for him to explain or establish those facts within his peculiar knowledge, failing which the prosecution will be entitled to take advantage of the presumption of fact arising against him, in discharging its burden of proof. 44. These fundamental principles, shorn of technicalities, as we have discussed earlier, apply only in a broad and pragmatic way to proceedings under Section 167(8) of the Act. The broad effect of the application of the basic principle underlying Section 106,. Evidence Act to cases under Section 167(8) of the Act, is that the Department would be deemed to have discharged its burden if it adduces only so much evidence, circumstantial or direct, as is sufficient, to raise a presumption in its favour with regard to the existence of the fact sought to be proved. Amba Lal's case, (1961) 1 SCR 933 = 1983 E.L.T. 1321, was a case of no evidence. The only circumstantial evidence viz. the conduct of Amba Lal in making conflicting statements, could not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the High Court was right in holding that the burden of proof had shifted on to the appellant after the Customs Authorities had informed appellant of the results of the enquiries and investigations. 14. This also disposes of the first point, as we have said, the burden was on the Customs Authorities which they discharged by falsifying in many particulars the story put forward by the appellant. 15. Coming to the fourth point, we are of the opinion that, except for certain items there is evidence in favour of the conclusion of the High Court. It cannot be disputed that a false denial could be relied on by the Customs Authorities for the purpose of coming to the conclusion that the goods had been illegally imported. In Issardas Daulat Ram v. Union of India, (1962) Supp. 1 SCR 358 at p. 363 the credibility of the story about the purchase of gold from certain parties was treated as a relevant piece of evidence." 4.7.6 It is also not for the person accused of undertaking the clandestine activities, to question the investigation by stating what has not be put forth on record as evidence, till the time the case has been established by the investigating aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was made. The demand was in nature of presumptive demand, and as per the submissions made by the appellant the appeal against the said order was dismissed not after consideration on merits but for the reason of non compliance with provisions of Section 35 F of the Central Excise Act, 1944. Appellants have also not placed on records any document evidencing such dismissal of the appeal filed by them. As far as we are aware tribunal has been deciding the appeals setting aside the demands made against the ingot manufacturers on the basis Shri N K Batra, report on electricity consumption [SRJ PEETY STEEL PVT. LTD [2015 (327) E.L.T. 737 (Tri. - Mumbai)], Sukh Sagar Metals (P) Ltd [2020 (372) E.L.T. 801 (Jhar)]]. In our view claim made by the appellant does not support their case either way. 4.9.1 On the issue of invocation of longer period of limitation for making the demand, Commissioner ahs in impugned order held as follows: "5.17. The show cause notice is invoked for longer period of Section 11A (1) of the Central Excise Act, 1944, as the entire activity was a well planned fraudulent surreptitious activity with an intent to evade payment of Excise duty and therefore, the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, and for this act here, no person is standalone in the corrupt business and all they have their own prefixed specified role in a consolidated manner. They are the main protagonist of the entire exercise and stage managed the show, with an intention to evade the payment of duty and are the beneficiary of extraneous pecuniary gains. Without their consent, knowledge & direction, such unscrupulous activities would not take place. To conclude, said persons named above are equally responsible and were proactively indulged in managing the illegal show and thus rendered themselves liable for penal action. Case laws, cited hereinbelow, support this view: i) 2006 (202) E.L.T. 90 (Tri-Mum.) - Vishan Shamlal Milwani Vs. CCE, Abad ii) 2007 (212) E.L.T. 400 (Tri-Bang.) - Subhash Gupta Vs. CCE, Hyderabad iii) 2003 (161) E.L.T. 802 (Tri-Mum.) - M. V. Gopinathan Vs. CCE, Vadodara. iv) 2009 (236) E.L.T. 720 (Tri-Ahmd.) - Rajan Prints Vs. CCE & C, Surat Defence advanced by Shri Ajay Kumar Baheti praying for non- imposition of penalty on him, on the premise that he was not aware whether the consignments were cleared with bills or without bills, as his job was limit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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