TaxTMI 
TaxTMI 
2010 (10) TMI 203
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....d plastic granules in the guise of lay flat tubings. Penalty equal to duty demanded has been imposed on RIP besides requiring them to pay interest. A penalty of Rs. 10,00,000/- has been imposed on Shri Anil Agarwal, partner, the second appellant and a penalty of Rs. 5,00,000/-has been imposed on Shri K.B. Nair, General Manager (Excise) of RIP. 2. The duty demand has been categorized and worked out in Annexures A, Bl, B2 & B3 to the show cause notice. Annexure Bl, B2 & B3 involved clearance of plastic granules in the guise of lay flat tubing and Annexure A involves clearance of plastic bags in the guise of lay flat tubings. It is proposed to take each issue separately, evaluate the evidence available in the light of submissions made by both the sides. 3. The Commissioner has come to the conclusion that appellants had cleared plastic bags but showed the same as lay flat tubings in 63 clearances to various companies belonging to Eastern Group in Kerala. The Commissioner has based this conclusion on comparison of six purchase orders where purchase order shows bags whereas invoice shows lay flat tubing. He has also relied upon the statement of Shri K.Prabhakar, Assistant....
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....ay flat tubing, contrary to the claim of the department and the response of the appellant was to supply lay flat tubing only. Therefore the benefit of doubt has to be extended to RIP as regards clearances to Eastern Group is concerned covered by Annexure 'A'. 4. The demand under Annexure B1 amounting to Rs. 1,01,996/- is based on the statement Shri Lalit Agarwal, partner of Deepak Chemoplast who admitted that in respect of invoice No. 742 dated 30-5-02 they had purchased plastic granules but the invoice showed the same as lay flat tubings. It was submitted that Shri D.P. Vyas, plant in-charge had stated that in the case of existing customers and known purchasers, they had sold the goods mentioned in the invoice. Wherever they had sold plastic granules in the guise of lay flat tubings, the buyers' names were fictuous and amount was received in cash. Therefore the department is seeking to discard one portion of the statement based on the statement of Shri Lalit Agarwal. However Deepak Chemoplast had not been made a noticee even though they clearly admitted that they had collaborated with the appellants in receiving plastic granules in the guise of lay flat tubing. Since no no....
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....hbhai Patel stated that he had never transported any goods for RIP. Further the owners of the vehicles whose numbers were mentioned in the invoices of RIP in relation to the sales of lay flat tubings to customers with incomplete addresses have revealed that goods were actually delivered to manufacturing units in Daman and nearby area and not to the buyers mentioned on the invoices. Further the departmental officers also made efforts to locate the buyers and it was found that 16 buyers of lay flat tubings whose names were picked up on a random basis, were found to be non-existent. Summons issued to them were also returned undelivered. In all these cases of 741 clearances, cash was deposited in Mumbai office whereas in all the cases of sales to regular buyers, the payments were received by way of cheques. The appellants contended that there is no legal requirement of specifying the address of the consignee and all the transporters were not investigated and Shri Shailendra Singh's statement applies to only two clearances. It was also contended that the appellants had sought cross-examination of Mr. Vyas, Mr. Hetal Patel, Mr. Anil Agarwal and Mr. K.B. Nair. It was also contended that t....
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.... goods are going for job work and when they are not intercepted, the challans would be destroyed. Obviously the department has not been able to recover all the challans and only four buyers have been identified. Since all parallel challans were destroyed immediately after use, obviously department has not detected the full quantity under this heading. The evidence available is the recovery of the blank parallel challan book, statements of transporters, statement of Shri Hetal Patel. The appellants have contended before us that no investigations were carried out with the companies in whose name challans were made and cross-examination of Shri Hetal Patel was not granted and cross-examination of vehicle owner was also not allowed. In this case there is a clear admission of the offence by Shri Hetal Patel and Shri D.P. Vyas duly accepted and endorsed by the partner. Further the transporter has not retracted his statement till date. Further parallel challan book was recovered. Under these circumstances it has to be held that department has been able to make out a case of removal without proper documents. Therefore this demand also has to be sustained. 7. The discussions above l....
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....s per SCN As per Cum duty price method. BED 39,868 34,187 Edu. Cess 798 684 Differential total duly payable 40,666 34,871 (Only relevant portions extracted) From the reproduction of the relevant portions of the decision of the Hon'ble Supreme Court as extracted by the Commissioner it can be seen that there cannot be a general conclusion as regards treatment of the amount received as cum duty price. In this case there is no dispute or there is no allegation by the department that the appellants had received additional consideration over and above what is shown in the invoice. The invoice price is not disputed. The amount received is not disputed. Appellants have actually paid an amount of 8% to the department which is what they have shown in the invoice. There is no evidence to show that the value was decreased or increased. Therefore there is no reason to reject cum duty price. It is an accepted principle that when a transaction value is available, we need not require a Chartered Accountant to certify that the price charged includes all the elements. Only in the case of refund claim, assessee is required to show that the duty liability has not be....