TaxTMI 
TaxTMI 
2011 (1) TMI 758
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....VAT credit on duty paid inputs and on capital goods. The appellants namely M/s Amit Weaving Mills, Ashish Textile Mills, Mohatta Textile Mills, Neela Giriraj Mohatta, R.K.A. Mohatta, Sulochana R. Mohatta, Jyoti R. Mohatta, Radhadevi M. Mohatta are the family firm of M/s MMSL. The other appellants, namely M/s Nirmal Transport and M/s Nirmal Warehouse are a transporter and godown keeper in this case. 2.1 The Anti Evasion Officers intercepted a truck on 14.7.99 and preliminary enquiries were made, which revealed that the truck was carrying 156 bags of PVY loaded from the factory premises of MMSL without the cover of Central Excise documents. Immediately, the truck was taken to the factory premises of the appellants but the appellants failed to produce proper documents. But they confirmed that the goods have been loaded from their factory. On further verification, it was revealed that the goods were manufactured by MMSL and cleared without cover the Central Excise documents and without accounting in their statutory record and without payment of Central Excise duty and the same was seized. During the course of search in the factory, some documents were seized in the presence o....
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.... from each individual customer an amount of Rs.32/- per bag towards transportation charges and an additional amount of Rs.12/- per bag towards warehousing charges. This amount is always received in cash and kept with them by M/s Nirmal Transports/Nirmal Warehouse, and because of this collection they do not charge anything to MMSL for transportation from Ichalkaranji to Bhiwandi and for warehousing of goods at Bhiwandi. These transactions are recorded in a Daily Record Book and the same is sent subsequently to MMSL. 2.2 Apart from these, the goods were cleared in local as well as in Mumbai Market by MMSL through the following firms, which are owned by family members of the Directors/Managing Director of MMSL: - 1. Amit Weaving Mills 2. Ashish Textile Mills 3. Mohatta Textile Mills 4. Neelu Giriraj Mohatta 5. Radhadevi M. Mohatta 6. Jyoti R. Mohatta 7. Rajendrakumar A. Mohatta 8. Sulochana R. Mohatta These firms are having their own independent weaving business activity and sales yarn in Mumbai as well as in the local market. The goods we....
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....and recovered from them under the provisions of Section 11A(1) along with interest thereon under Section 11AB and penalty equal to duty under Section 11AC of Central Excise Act, 1944. (iv) The plant, machinery, land, building equipments etc. used for the manufacture of the clandestinely removed goods should not be confiscated under Rule 173Q(2). 2.3 The matter was adjudicated and after duly adjudication, Central Excise duty of Rs.71,68,654/- was confirmed against M/s MMSL along with interest at applicable rates and a penalty of equivalent amount was also imposed under Section 11AC. Vehicle No. MH-04 P 505 was confiscated but allowed to redeem the same on payment of fine of Rs.1 lakh. The goods valued at Rs.7,06,860/- was also confiscated and allowed to redeem the same on payment of fine of Rs.1,50,000/-. Penalties on the other family firms were also imposed Rs.1,00,000/- each. The penalties of Rs.2,50,000/- were also imposed on each M/s Nirmal Transport and M/s Nirmal Warehouse. Aggrieved from the above said order, the appellants are before us. 3. First, we take up the appeal of M/s Nirmal Transport and Nirmal Warehouse. 3.1 Shri Manoj ....
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....antity of 35955 kgs. includes the quantity of PV yarn contained in 156 bags seized on 14.7.99 for which duty has been separately demanded. While the Commissioner has allowed the appellant s claim for set off between the demands made as against the demand raised in respect of 25 bags of 2/40 count of PV yarn, 71 bags of 40s count of PV yarn, he has not allowed the appellant s claim in respect of 45 bags of 30s count and 15 bags of 45s count of PV yarn. If the above claim is considered the short quantity would stand reduced to 23995 kgs and this shortage has to be further reduced by adjusting this against 30s count and 2/40s count of PV yarn for the period 1999-2000. (e) The demand of Rs.24,94,186/- was raised on account of clandestinely cleared 2175 bags of PV yarn of different counts through M/s Nirmal Transports. The department compared the number of bags of PV yarn of different counts mentioned in the lorry receipts issued by M/s Nirmal Transport as against the Central Excise invoices issued by the appellants during the material period and alleged that the number of bags covered under Central Excise invoices are less than the number of bags covered under lorry rec....
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....thority for fresh adjudication after re-verification of the records in the presence of the appellants and the impugned order be set aside. 5. On the other hand, learned DR submitted that it is a clear-cut case of clearance of the goods without duty paid documents and the same has been admitted by the appellants that they have not paid any duty at the time of clearance of their goods. He further submitted that during the process of adjudication, the appellants raised objection about the quantification of duty demand. The demands are confirmed after obtaining the examination report of their seized records. The statements showing the workings of the demanded amounts were got verified from the concerned Central Excise officers and wherever acceptable mistakes were noticed, the benefit was given to the appellants. He further submitted that now the appellants have again contested the quantification of demand and during the course of arguments, the learned Advocate raised the issue of quantification of demand and sought to justify his plea by stating that the relevant lorry receipts/records were not made available by the department to the appellants at the time of re-quantificat....
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....from some other manufacturers or from the open market. We also find that during the investigation, it was also stated that these family firm, also purchased some quantity of the yarn from the open local market under the cover of commercial/Excise paid invoices. The adjudicating authority has not examined the said invoices against which the family firms had purchased from the local market. During the course of arguments, the ld. advocate has been able to produce some of the such invoices before us. We find that the matter needs examination by the adjudicating authority on this accounts to correlate the quantity of sales and purchases after going through the invoices, thereafter to arrive at the proper conclusion. So, the demand confirmed on account of clearances through family firms is set aside for requantification. 8. With regard to the under-valuation, the appellants contention that the transportation and maintenance charges recovered from their consignment agent is unjust as their charges collected by the transporter and warehouse owner from the customers separately. In that event, he contended that this transportation and warehouse charges at....
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....do agree with the contention of the learned Advocate with regard to quantification of demand on account of re-verification of the lorry receipts and stock verification done during the course of investigation and for that purpose also, we remand back the matter to the adjudicating authority for re-quantification of demand. The demand on account of under-valuation is confirmed. 10. In view of the above discussion, the appeals filed by the main party (MMSL) and family firms above namely Amit Weaving Mills, Ashish Textile Mills, Mohatta Textile Mills, Neelu Giriraj Mohatta, Radhadevi M. Mohatta, Jyoti R. Mohatta, Rajendrakumar A. Mohatta and Sulochana R. Mohatta are remanded as directed. 10. Now we come to the appeals of M/s Nirmal Transport and Nirmal Warehouse. 10.1 After hearing both sides, we have gone through the statements of Shri M.L. Nakate, who was the owner of M/s Nirmal Transports. Pertinent observations on the statements in the order, the statements are as under: - Shri M.L. Nakate, in his statement dated 16.7.99, 27.7.99 and 2.11.99 stated that it was his business practice to lift the goods from MMSL, store in Nirmal Warehouse ....