TaxTMI 
TaxTMI 
2008 (12) TMI 423
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....es, 2002. In addition, Commissioner (Appeals) vide impugned order has imposed penalty of Rs. 5 Lakh on Shri Shakeelbhai Abdul Rauf Vohra, partner of M/s. A.S. Corporation and penalty of Rs. 3 Lakh on Shri Kirtibhai C. Patel, proprietor of M/s. Avantika Steel Suppliers. In addition, penalties of Rs. 1 lakh each stands paid on the other appellants in terms of provisions of Rule 26 of Central Excise Rules. 2. As per facts on record, M/s. Sulekhram Steels P. Ltd. are engaged in the manufacture of TMT bars. Their factory premises were searched on 21-9-2004 along with the search of residential premises of one Ms. Satyabhama sales executive of M/s. Sulekhram steels and other premises including premises of supplier of raw materials. Premises of one M/s. A.S. Corporation and residential premises of Shri Shakeel Abdul Rauf Vohra partner were also put to search simultaneously on 21-9-2004.- However, no incriminating documents were recovered but the records maintained in the ordinary course of business were withdrawn. 3. The Revenue conducted further investigations and recorded statements of Shri Shakeel A.R. Vohra, partner of M/s. A.S. Corporation. In his statement recorded on....
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....matic milts, that they had purchased TMT/CTD from mills viz. M/s. Sulekhram Steels Pvt. Ltd., M/s. Sirhind Steel etc. And sell the same to their customers; that the marks are embossed on the bars manufactured by such mills; that apart from the above, they purchase from different Traders and sell the same to their customers; that the quality of the materials set to the customers i.e. either they are of automatic mills or re-rolling mills are not verified; that the automatic mills issue the test certificate on request and the said certificate in original or the photocopy of the said certificate is given to the customers on request; that for purchase of goods from the automatic plant, they give the orders in writing on their letter head stating the quantity, size etc.; that the arrangement for transportation is being done by them for the purchases made by their customers and in case of purchase through trader the respective traders make their own arrangement for transport; that the driver after loading the goods from the automatic plant telephonically informs them and they prepare their bills and hand over the same to the driver; that Shri Mohmad Rafik Abdul Latif Vohra and Shri Anees....
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....SULEKHRAM" embossed on the TMT CTD bars, identifying the name of the manufacturer. They clarified that they used to place orders with M/s. A.S. Corporation for supply of TMT bars. 10. During the course of further investigation, statement of transporters was recorded indicating that they used to load the materials from factory from Sulekhram Steels P. Ltd and deliver the same to the customers as per the instructions. The trip register maintained by these transports were also scrutinized to take support of the fact that goods were loaded at the premises of M/s. Sulekhram Steels P. Ltd. 11. Based upon the above, proceedings were initiated against M/s. Sulekhram Steels alleging that the supply made by M/s. A.S. Corporation to his customers were the goods which were manufactured by M/s. Sulekhram Steels P. Ltd. and cleared without payment of duty. Notice accordingly proposed confirmation of demand of duty against M/s. Sulekhram Steels P. Ltd. and imposition of penalties and interest on the said appellant as also on the other appellants. The said show cause notice stands confirmed by impugned order of the Commissioner. 12. Shri J.C. Patel, learned advocate appeari....
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....s have actually been loaded from the factory premises of M/s. Sulekhram Steel P. Ltd. Commissioner has picked up only three entries to show that such loading was actually done from the factory of the said applicant. In that respect also, one of the entry in the trip register reflected the names as 'SUKEGHRAM", thus, casting doubt on the same. In most of the cases, no trip register is available. As such, it stand submitted before us that in absence of any evidence worthy of reliance, the conclusion arrived at by Commissioner are in the nature of assumptions and presumptions. 14. Countering the argument, learned SDR Shri D.S. Negi submits that it stand proved on record that traders only supplied bill without corresponding supply of goods to M/s. A.S. Corporation and all the goods supplied by M/s. A.S. Corporation to their buyers bore the trade mark of M/s. Sulekhram. He submits that these facts are sufficient to prove that the goods supplied by M/s. A.S. CORPORATION to their buyers were actually manufactured by M/s. M/s. SULEKHRAM STEEL PVT. LTD. and cleared clandestinely. He, accordingly, prayed for confirmation of duty against the said appellant and to uphold the imposition....
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....sed, cannot be relied upon without putting the same through the test of cross examination. However, we do not feel inclined to remand the matter on this ground inasmuch as all the traders appearing before us have again reiterated their stand that no goods were actually supplied by them to M/s. A.S. CORPORATION under the cover of invoices raised by them and it was only bills which were issued against which payments were received by them by cheque from M/s. A.S. CORPORATION. 16. As regards merits of the case, we find that the adjudicating authority has properly framed the disputed issue with which we shall be dealing one by one. 17. In Para 27.1 of his impugned order, Commissioner has observed, after discussing various evidences that if the traders/dealers had not supplied the goods to M/s. A.S. CORPORATION, then from where he procured the TMT bars and supplied to his customers under his own bills/invoices. After framing above issue, he refers to the statement of the buyer who has purchased the goods from M/s. A.S. CORPORATION and observed that inasmuch as the TMT/CTD bars purchased from M/s. A.S. CORPORATION were embossed with mark "SULEKHRAM" which identified the na....
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....ained by transporters as also statement of the transporters indicating that the goods were being lifted from the factory of M/s. SULEKHRAM STEEL PVT LTD. While making the statement, transporters has referred to trip registers maintained by them. Copies of such trip registers stand produced before us and we find that except entries in three places, the trip registers nowhere indicates that the goods were actually loaded from the premises of M/s. SULEKHRAM STEEL PVT. LTD. In fact, no trip registers are available in most of the cases and wherever they are available, no such entry showing loading of the goods from the factory of M/s. SULEKHRAM STEEL PVT. LTD. stand mentioned. The Commissioner has picked up only 3 entires from the said registers showing loading of the goods from the appellant's factory that too in one of the case, it stand written as "SULEGHRAM" instead of "SULEKHRAM". As such, we are of the view that the records maintained by transporters cannot be held to be corroborative evidences so as to support statements of transporters. It is well settled legal position that the allegation of clandestine removal cannot be sustained on the basis of transporters' records, which is....
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....nd he made it clear that as per the worksheet prepared by Revenue, the clearances were effected without payment of duty. 21. Commissioner has also observed that it is a settled law that what is admitted need not be proved and has referred to various decisions of the Tribunal. Accordingly, he has concluded that admitted facts need not be corroborated. We are of the view that the above phrase i.e. "what is admitted need not be proved" stand mis-interpreted by the adjudicating authority. We are at a loss to understand as to what stand admitted and by whom. The appellants are definitely agitating the allegations in the show cause notice and the finding in the impugned order. There is no clear admission on the part of the any representative of M/s. SULEKHRAM STEEL PVT. LTD. admitting to clandestine manufacture and clearance or the goods. The findings are required to be arrived at by appreciating the entire evidences on record and in absence of any admitted fact and evidences, the observations by the adjudicating authority than that what is admitted need not be proved, cannot be appreciated. 22. We further note that the allegations of clandestine removal are required to b....