TaxTMI 
TaxTMI 
2006 (2) TMI 390
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....emises. These goods were seized under Mahazar. In respect of the sealed goods a Show Cause Notice dated 26-7-2002 was issued answerable to the Additional Commissioner of Central Excise, Bangalore-I Commissionerate. The proceedings have already been completed by the Additional Commissioner in his Order-in-Original dated 27-2-2003. Detailed investigations were undertaken and it was found that the appellants did not pay duty on the goods removed even after crossing the SSI exemption. There was also evidence for undervaluation. Hence another Show Cause Notice dated 6-8-2003 was issued answerable to the Commissioner of Central Excise. The Commissioner of Central Excise passed the impugned order. 3. In the impugned order, he has confirmed demand of duty of Rs. 26,63,508/-, the duty on the goods manufactured and cleared for the period from 1-6-2001 to 30-1-2002 under proviso to Section 11A(1). He has confirmed a demand of Rs. 28,23,031/- being the Central Excise duty paid on the goods manufactured and removed during the period from 1-2-2002 to 31-3-2003 under proviso to Section 11A(1). This short payment is on account of undervaluation. He imposed a penalty of Rs. 54,86,539/- unde....
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....by the noticees is the price actually paid or actually payable for the goods and hence it forms the transaction value". The further finding in the same para at lines 19 and 20 (P. 29) was - "therefore, I hold that the total amount shown in individual invoices becomes the transaction value for that transaction". At lines 28 to 30 of Para 31, P. 31 of the impugned order, the Respondent found "I have no doubt with regard to the Chartered Accountant certificate, accounts, bank statements and invoice-wise realisation, being correct which are shown in the record." (iv) The notice is time barred and the extended period cannot be made applicable since the investigation commenced on 30-1-2002 by Mahazar and the statements and there were goods subjected to seizure on the same date valued at Rs. 8,04,050/-. This being the case, the Show Cause Notice should have been issued within six months from the date of seizure as per Section 12 of the Central Excise Act, 1944 which makes applicable under Section 110 of the Customs Act, 1962 vide Notification No. 68/63-CE (NT). The notice is time barred. The appellants relies on the decision of Madhya Pradesh High Court in Vilayat Hussain v....
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....003. Hence the subject-matter of the two orders are not exactly the same and res judicata is not applicable. 7. The Managing Director, Shri Saleem Pasha has admitted under-valuation and clandestine removal in his statement. The statement has not been retracted. The undervaluation is not simply based on two slips but also based on the statements of concerned persons. The following case laws were relied on by the learned SDR : - (1) Tanna Electronics v. CCE, Mumbai [2005 (186) E.L.T. 312 (Tri. - Mumbai)] (2) Hindustan Processors Ltd. v. CCE, Jaipur [2004 (173) E.L.T. 73 (Tri. - Del.)] (3) CCE, Chandigarh v. Nabha Steels Ltd. [2004 (169) E.L.T. 345 (Tri. - Del.)] (4) Haryana Acrylic Mfg. Co. Pvt Ltd. v. CCE, New Delhi [2001 (130) E.L.T. 562 (Tri. - Del.)] (5) Ludhiana Food Products v. CCE [1989 (43) E.L.T. 648 (Tribunal)] (6) CCE, Surat-1 v. ND Textiles [2001 (168) E.L.T. 381 (Tri. - Mumbai)] (7) Asstt. Collector of Cus., Madras-I v. Govindasamy Ragupathy [1998 (98) E.L.T. 50 (Mad.)] (8)&....
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.... All the incriminating documents seized have been shown to the concerned persons including Shri Saleem Pasha, Managing Director of RPPL. They have confirmed the authenticity of the documents and confirmed the undervaluation also. None of the persons have retracted thereafter. Thus the allegations are made based on documents duly corroborated by the concerned persons. 4. Gian Mahatani v. UOI, 1999 (110) E.L.T. 400 (S.C.) In the instant case, modus has been established on the strength of seized documents duly corroborated by statements recorded under Section 14 of the Central Excise Act, 1944. The allegations are not based on suspicion. Hence the case law is not at all relevant. 8. We have gone through the records of the case carefully. The learned Advocate urged the point that on the basis of investigation conducted by DGCE proceedings were initiated answerable to the Additional Commissioner of Central Excise and therefore a fresh set of proceedings on the same fact are not admissible. He cited number of case laws on the issue. The show cause notice answerable to the Additional Commissioner was issued on 26-7-2002. The issue before the Additional Commissioner in tho....
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....-2001; that the yellow slip seized from their premises under Mahazar contains the details of actual price paid by them in respect of the chairs supplied by M/s. RPPL; that in the said invoice the value of the chair has been indicated as Rs. 90/- per chair but the actual price was Rs. 140/- per chair; that the billed amount Rs. 30,000/- was paid through Demand Draft to M/s. RPPL; that the remaining amount over and above the invoice value was paid in cash to the persons of M/s. RPPL. 10. From the above observations, it is seen that the subject-matter of the proceedings before the Commissioner is slightly different from that before the Additional Commissioner. Even though the Show Cause Notices have been issued on the basis of the same set of investigations, the proceedings before the Additional Commissioner has not dealt with undervaluation. Despite the fact that the yellow coloured slips were recovered as early as 30-1-2002, no proper investigation appears to have been conducted on those slips. However, we have before us a statement of Shri Saleem Pasha dated 29-5-2003 admitting under-valuation and the modus operandi adopted. This statement given under Section 14 of the Central E....