TMI Blog2005 (2) TMI 342X X X X Extracts X X X X X X X X Extracts X X X X ..... in short) also received raw-materials i.e. P.P. Granuels for conversion into the goods which were purchased by M/s. Supreme Plast India and M/s. Cosmos Industries and were used for manufacture of fully finished plastic flusing cistern, seat covers, etc. and their parts; that Cosmos Industries and Supreme Plast India did not have any machinery and manufacturing facility and could not undertake any manufacturing activity; that the goods sold by them were manufactured by M/s. Bihariji, M/s. Hindustan Silicate and were cleared without payment of duty to M/s. Cosmos Industries and M/s. Supreme Plast India. 2.2 The learned Advocate also mentioned that according to the Department, M/s. Hindustan Silicate was a partnership concern having Shri L.N. Agarwal and his brother, Shri Mukesh Gupta as partners, started in April, 2001; that in March, 2002, the manufacturing activity was closed in M/s. Hindustan Silicate; that in January, 2002, they started a new Company, M/s. Bihariji Mfg. Co., in which Shri L.N. Agarwal and his father, Shri S.K. Gupta were Directors, for manufacturing of the impugned goods; that both M/s. Cosmos Industries and M/s. Supreme Plast India were supplying the raw-mater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted persons; that at the time of search no components were found in the premises of M/s. Bihariji whereas components were found in the premises of M/s. Cosmos and M/s. Supreme; that this is apparent from Panchnama dated 30-1-2003 prepared after the search of premises of M/s. Bihariji; that Panchnama also mentions of stainless steel sink in finished conditions; that on the other hand it is apparent from Panchnamas recorded at the different premises of M/s. Cosmos Industries that finished goods; components and raw-materials were found in the said premises; that Panchnama dated 30-1-2003 recorded at House No. 1692/121, Shanti Nagar, Delhi clearly mentions that Mukesh Gupta informed the Excise Officers that Cosmos Industries have been carrying out the manufacture of flushing cistern of various brands from their premises; that the Panchnama clearly mentions existence of machinery installed in the premises as also the work of assembly which was in progress at the time of visit of the officers; that it is mentioned in Panchnama recorded at the premises of M/s. Prabhat Plastic Industries that three hand moulding machines were installed where manufacturing activity of plastic parts is carri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad not been maintained by any of the employees of M/s. Bihariji Hindustan Silicate; that these were maintained by Shri Vinod Jain, Commission Agent; that these sheets show some names and some amount which has been treated by the Department as value of excisable goods clandestinely cleared by M/s. Bihariji and Hindustan Silicate; that he was working for various other firms apart from M/s. Cosmos and Supreme Plast; that Vinod Jain, in his statement dated 29-5-2003, has categorically stated that the details mentioned at pages No. 29 to 39 of file No. 15 were made by him only to impress upon the Directors of Cosmos Industries for getting job; that sale details were prepared by him on the basis of memory; that he has given the names of 66 firms which were fictitious and the details were also fictitious; that 8 parties out of sixty-six actually existed; that thus it is erroneous to conclude that the documents pertain to alleged clearance of finished goods and that too by M/s. Bihariji and Hindustan Silicate. Regarding loose sheets seized from Shri Rakesh Jain, the learned Advocate mentioned that Rakesh Jain is only a part time employee whose statement has not been recorded by the Depar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be treated as cum-duty price and the assessable value has to be determined after allowing statutory deductions. Reliance has been placed on the decision in CCE v. Maruti Udyog Ltd. - 2002 (141) E.L.T. 3 (S.C.). 5. Finally, he submitted that no penalty is imposable as the Appellants have not contravened any of the provisions of Central Excise Rules and there has been no evasion of duty of excise. 6. Countering the arguments, Mrs. Charul Barnwal, learned SDR, submitted that acting on an information about evasion of duty by M/s. Bihariji Manufacturing Pvt. Ltd., the Central Excise Officers conducted searches at various premises on 30-1-2003; that Virender Kumar, Supervisor at M/s. Bihariji, in his statement dated 30-1-2003, deposed that Shri L.N. Agarwal, Director directs him about manufacture of goods and the entire production is removed to M/s. Cosmos Industries; that he also deposed that they manufacture steel sink, plastic cistern, seat cover; that sinks are sent to Cosmos under challans which are handed over to Shri L.N. Agarwal by the driver of three wheeler; that the duplicate copies of challans are handed over by him to Shri Agarwal. The learned SDR also mentioned that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, is also not available as conditions stipulated in the Notification regarding giving undertaking by the supplier of raw-material was not fulfilled. The learned SDR also mentioned that there is no substance in the submissions of the learned Advocate that Order Book contains the enquiries made by the prospective customers for the reason that the contents are in such details which cannot be given on telephone. In support of her contention, the learned S.D.R. referred to the Order Book and submitted that these were the sale details of the excisable goods clandestinely sold by Cosmos Industries after procuring the same from M/s. Bihariji Manufacturing Co. She also reiterated the findings as contained in the impugned Order. 7. In reply, the learned Advocate, mentioned that during the course of search, the Central Excise Officers had seized small paper books containing challans for sending raw-material, job charges and purchase bills, thus cannot be denied by Revenue which also cannot claim that the raw-materials were not sent. In this regard, he referred to various challans issued by M/s. Bihariji and Hindustan Silicate for sending goods and job work charges charged by them. He also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mises, belonging to M/s. Cosmos Industries, searches have revealed the presence of semi-finished goods/parts and components. Shri Ram Niwas Kaushik, who was present at Shanti Nagar, has told the Panchas and Officers that work of assembling of flushing cistern was carried out and the parts/components of flushing cistern were kept in different racks. The Officers also found labels of various brand names. Mukesh Kumar Gupta who was found at another premises at Tri Nagar also informed the Panchas and the Officers that "M/s. Cosmos Industries has been carrying out the manufacture of flushing cistern of various brands from that premises." Mukesh Kumar Gupta also told that "M/s. Cosmos Industries has been having their main factory at 1673/121 Shanti Nagar, Tri Nagar, Delhi and they have also been using the above said premises for carrying out the manufacturing activities". When the Officers visited premises at 1673/121, Tri Nagar, they found the activity of assembling of components was going on there, a labour force was also found working in the factory as per Panchanama dated 30-1-2003. Shri L.N. Agarwal also in his statement recorded on the day of search has deposed that he started Cosm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by Cosmos Industries through Shri Vinod Kumar Jain. It has been held by Tribunal in many cases that the charge of clandestine removal has to be proved by Revenue by bringing positive evidence on record Rajasthan Petro Synthetics v. CCE, Jaipur - 2003 (160) E.L.T. 297 (T). The Apex Court has also held in Oudh Sugar Mills Ltd. v. Union of India - 1978 (2) E.L.T. (J 172) that no order can be based on assumptions and presumptions and "the findings based on such presumptions without any tangible evidence will be vitiated by an error of law." Regarding entries in Order Books recovered from the premises of Cosmos Industries, the learned Advocate has contended that these entries were enquiry from customers in response to advertisement which has been countered by the learned SDR by contending that the entries were so much in details which cannot be given on telephone by the prospective buyers. But there is nothing on record to show that the goods were actually cleared as no statement of any such customer has been brought on record. In view of this, the Revenue has not proved its charge against M/s. Bihariji Manufacturing Pvt. Ltd. and M/s. Hindustan Silicate Chemicals and consequently n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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