TaxTMI 
TaxTMI 
2002 (4) TMI 345
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....Central Excise Authorities and paying Central Excise duty on goods cleared by them. The premises of the Company were visited by officers of the Directorate General of Anti Evasion, New Delhi, in November 1999. It was found by them that the Company was removing finished products, without any document and without payment of Central Excise Duty. After investigation the Directorate issued a Show Cause Notice on 29-9-2000, demanding a duty of Rs. 1,12,89,671.00 and proposing penalty on Applicants under Rule 173Q, 52A and 92 and u/s 11AC of the Central Excise Act, 1944. The Notice also proposed the levy of interest, on the said amount of duty, under the provision of Section 11AB and also proposed imposing penalty on the Directors, Proprietors of the Company dealing in the goods and the agents, of the aforementioned company. 3. In pursuance of this Show Cause Notice, the Applicants approached this Commission on 20-4-2001 requesting for settlement of the case on payment of an admitted duty liability of Rs. 81,23,921.00 out of which they had already deposited Rs. 65,00,000.00 with Revenue and requesting for waiver of penalty, interest and also granting immunity from prosecution, to ....
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.... from AZF or Aftab Traders. He further stated that irrespective of the name of consignor, freight in respect of these consignments was paid by AZF except in case where material was sent to Moga. (ii) It is pertinent to mention here the averments made by Shri Aftab Khan, Proprietor of M/s. Aftab Traders in his various statements recorded under Section 14. Shri Aftab Khan has stated that he was CFA of AZF; that entire material booked by him was "Hathi Gola" brand tobacco manufactured by AZF that since beginning he was dealing in "Hathi Gola" brand tobacco and had recently started dealing in 'Samrat' brand tobacco which was also manufactured by AZF; that he was not dealing in any other material; that he had paid freight for these material which was later reimbursed by AZF; that only the name of the consignee was given on GR and not of the consignor so that his identity could be kept secret; that some times goods were received by him under the cover of bills but on most occasions he was receiving the goods without bills directly from the factory. (iii) Shri Subhash Aggarwal, Director of AZF, on being confronted with Annexure-A4 to SCN, st....
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....co was paid by M/s. Aggarwal Zarda Factory only. As far as Moga is concerned, the freight on the goods consigned was given by the Moga consignor. (iii) Subhash Aggarwal, Director AZF, on being shown the list of consignments in Chart 3, which subsequently become Annexure 4 (Copy bearing dated initials of Subhash Aggarwal Annexure 'C'), has also stated on 4-4-2000 that 'Q - You are being shown chart A-1, A-2/1, A-2/2, A-3 &A-4 in which the details of manufactured/branded chewing tobacco, quantity, GR No., Date, name of the consignor/consignee have been reflected along with the destination to which the goods have been sent is shown. Aftab Khan had stated that the freight in respect of material booked in his name had been borne by you and the goods i.e. hathi gola branded tobacco have been actually booked by you. Please state that have you issued invoices in respect of all these dispatches. 'A - I have seen the above chart and signed the same in token of identification. In this regard that Bills have been issued only in respect of consignment against which the Bill No. & date have been mentioned. For the remaining consignment shown in chart we have not issued....
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....bmissions dated 9-1-2002 have stated that they are disputing an amount of Rs. 31,67,750/- out of the total duty demanded under Show Cause Notice of Rs. 1,12,89,671/- on the count that loading sheets of the transporter on which the Revenue has relied upon for computing the liability, do not cover the names of the consignor/consignee. They have contended that wherever the word Tabacco appeared on the loading sheet/challan of the transporters, it was presumed that it was of the Applicants, irrespective of the facts that the Transport Company is transporting both raw Tobacco and manufactured Tobacco, of other firms also. 12. As regards, the admission of their Director Shri Subhash Aggarwal, of the work sheets confronted by Revenue during investigation, the Applicant has claimed that it is impossible for any person to remember about GR Nos. which have been issued by transporter. They have contended that no person for that matter can either accept or deny anything after merely looking at a chart, which contains certain GR Nos. only. They have further contended that it does not stand to reason that any person can simply accept the contents by merely looking a chart showing number ....
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....ate next referred to the incriminating portions of the statement of Shri Joginder Kumar, transporter (Para 6.1 of the Show Cause Notice) and submitted that in respect of entry at S. No. 57 of Annexure-4, the challan shows the name of consignor as Ramesh & Co. and the tobacco is hukka tobacco: since hukka tobacco is not manufactured by them and some other consignor has been indicated, the statement of Joginder Kumar would appear contrary to documents on record. Likewise, he referred to the statement of Subhash Aggarwal (Para 6.14.3 of the Show Cause Notice) and submitted that he had been called to the office of DGAE and shown the already prepared charts and was asked to admit or deny the position. It was therefore, not humanly possible for him to properly indicate the facts. Moreover, the chart has been demonstrated not to have been made out correctly as evident from duplicate entries at S. Nos. 62 and 92 of A4 itself and entries at S. Nos. 7, 9, 24 of Annexure A4 where loading challans were cancelled and yet they have been included. There are duplicate entries at 18, 19, 54, 55, 56, 85 etc. of Annexure-A-4 amounting to 20 such entries in all. The Advocate submitted that out of 8....
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....ll knowledge of the facts. The Bench asked the departmental representative what was the amount of duty involved in the remaining 61 entries of Annexure-A4 (i.e. 83 entries-22 wrong entries as accepted) to which it was stated that he will give it after calculating. To another query from Bench on his submissions regarding immunity requested for, it was stated that this is the discretion of the Commission. 19. In light of the foregoing the Bench observed as follows :- The Bench observed that in respect of 83 entries disputed in Annexure-A4, the error in 22 entries (duplicate, cancel, etc.) is accepted by the department and for the remaining 61 entries, the Bench desired a statement by way of an affidavit from the applicants that; (a) there is no document in their possession to link them to goods which are shown in the respective loading Challans for these 61 entries in Annexure-A4. (b) That they have not paid freight for the goods against any of these entries. 20. The Applicants in their affidavit dated 14-3-2002 have stated as under :- It has been ascertained that there are no documents for 61 ent....
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....liability of Rs. 19,25,500/-. 24. The main thrust of Revenue, is the loading slips/Challans of M/s. Punjab Transport Co., and the statement of Shri Joginder Kumar, to the effect that wherever the term Tobacco occurs, it relates to the Applicants Company only. 25. The Applicant on the other hand, have contended that first and foremost, the loading Challans relate to goods of other parties also and cover even Hukka Tobacco, which is not manufactured by them. Secondly, they have taken the plea that documents like the GRs are not available with Revenue, nor with them, in order to corroborate these Entries. Hence, the main thrust of their arguments is that Revenue is relying upon totally uncorroborated documents of a third party i.e. Transporter M/s. Punjab Transport Co. and relying upon the statement of their Proprietor Shri Joginder Kumar, without making him a co-noticee to the Show Cause Notice, dated 29-9-2000. They have relied upon the decision of CEGAT in the case of M/s. R.P. Industries & Others v. Collector of Customs, Ahemababad [1996 (82) E.L.T. 129 (Tribuanl) = 1995 (10) RLT 669 (CEGAT-WRB)] where the head note to Para-11 reads as under :- Evidence - Statem....
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.... Director of the Applicant Unit in token of having seen the work sheets, cannot be taken that they are correct, without corroboration, wherein the onus of proof lies on Revenue, which they have not been able to discharge. This is further borne out by 12 Entries of Annexure-B hereto, which cover hukka tobacco, which further dilutes Revenue's claim on this count. 30. The very fact that there is no corroboration by Revenues of the disputed loading Challans of M/s. Punjab Transport Co., wherein Revenue is relying solely on the statement of Shri Joginder Kumar, to the effect that wherever the term tobacco occurs, it relates to the Applicant, without even making Shri Joginder Kumar and M/s. Punjab Transport Co., as co-noticees to the SCN, dated 29-9-2000 is very intriguing and casts doubts on the veracity of Shri Joginder Kumar's statement and the loading sheets, which are uncorroborated. More so with multiple entries, cancelled Challans, hukka tobacco entries having a large role to play in the disputed 83 entries of Annexure-A4 to SCN. 31. In light of the foregoing, we are of the view that uncorroborated loading Challans of the disputed entries of Annexure-A4 to Show Cau....
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.... of each clearance, till the date of final payment. This exercise must be completed by the Applicants, within 15 days, of receipt of this order. The Applicants shall supply Revenue with a copy of the work sheet, duly authenticated by them, as being correct and true, so that the Revenue can certify the correctness of the same. Copy of the work sheet of interest duly authenticated and certified by Revenue shall be supplied to the Registry of the Commission, within 30 days of receipt of this order. 35. The Applicants should pay full interest worked out by them, within 15 days of submitting the work sheet, to Revenue and to the Registry of this Commission and shall produce proof of payment of the same, duly certified by Revenue, to the Registry of this Commission. 36. The Applicants are granted immunity from prosecution under the Central Excise Act, 1944 and the Rules made thereunder, in full in respect of the case covered by the Applications in question. 37. Attention of the Applicants is drawn to sub-section 9 of Section 32F of the Act. The settlement arrived at under this order shall be void if it is subsequently found by the Settlement Commission that it has....
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.... Grand Total 4958   Cancelled/Duplicated entries in the Annexure-A4 to the SCN 1 Total No. of bags of chewing tobacco on account of cancelled/duplicated entries in Annexure-A4 4,958 2 Total value of the 4958 no. of bags @ 500 per bag Rs. 24,79,000 3 Total BED @ 40% of the Assessable Value Rs. 9,91,600 4 Total AED @ 10% of the Assessable Value Rs. 2,47,900 5 Total duty in respect of cancelled/duplicated entries in Annexure-A4 to the SCN Rs. 12,39,500 Annexure-B Revised Chart showing details of remaining 60 entries of manufactured tobacco of M/s. Aggarwal Zarda Factory (P) Ltd. of the entries at Sl. Nos. 1-83 of the Annexure-A4 after excluding cancelled/duplicated entries S. No. S. No. as per old Annexure A4 Challan No. G.R. No. Date No. of Bags Destination Commo-dity 1 1 15044 26168 9-5-98 300 Moga Tobacco 2 2 15045 53976 ....
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....bacco 33 40 19132 64438 11-9-98 14 Rajpura Tobacco 34 41 19136 11953 12-9-98 300 Moga Tobacco 35 43 19169 64372 16-9-98 29 Sohnewal Tobacco 36 44 19170 11956 17-9-98 302 Moga Tobacco 37 46 19326 11960 23-9-98 300 Moga Tobacco 38 47 19374 11964 26-9-98 300 Moga Tobacco 39 49 1980 66992 30-9-98 3 RJA Tobacco 40 50 19390 66944 2-10-98 40 Khanna Tobacco 41 51 3768 3706 8-6-99 300 Moga Tobacco 42 53 5245 5243 7-8-99 300 Moga Tobacco 43 57 5137 19598 21-7-99 15 Hoshiarpur Huka Tobacco 44 58 5142 9474 21-7-99 5 KTL Tobacco 45 59 5146 20115 21-7-99 32 Damtal Huka Tobacco 46 60 5150 20157 23-7-99 110 Hoshiarpur Huka Tobacco 47 61 5151 20172 22-7-98 35 Hoshiarpur Huka Tobacco 48 65 26563 31072 24-8-98 9 Yamunanagar Huka Tobacco 49 70 9984 41371 26-9-99 5 Radaur Tobacco 50 ....