TaxTMI 
TaxTMI 
2011 (8) TMI 732
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....entral Excise Reference was registered as Central Excise Reference No. 3 of 2005. 4. The notices issued earlier in the year 2009, fixing 25.1.2010, were not received back after service. Fresh notices were thus directed to be issued, on which the office reported that undelivered cover has been received back after service along with post office report. On 6.12.2010, the Court was pleased to direct the department, to file affidavit of service. 5. Sri S.P. Kesarwani, has placed on records notices published by the Assistant Excise Commissioner, Division-II, Kanpur on 5.12.2010, in Hindi Dailies 'Dainik Jagran' and 'Amar Ujala' published from Kanpur. The original copies of newspapers have been placed on record. 6. The notices shall be deemed to be served on the respondents. 7. M/s. Shabroc Chemicals - the respondent firm with Sri Mukul N. Shah, as its partner, was registered with the Central Excise Department upto 31.3.1997. The registration was surrendered and the firm started availing SSI exemption vide notification dated 1.3.1997. 8. On 17.9.1997, the factory premises of the firm was raided by the Central Excise Officers, who seized so....
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....pt of extra raw material and extra consumption of electricity for production of excess goods, and no shortage of raw material, or excess finished goods were found in the factory premises, at the time of raid by the excise officers. 14. The Tribunal observed that in the diaries, at some pages, only rate, amount and mode of packing were recorded and nothing more, and from these entries, it could not be said that these pertained to the clearance of the disputed goods by the assessee in a clandestine manner. Thereafter relying upon decisions of the Tribunal in K. Harinath Gupta vs. Collector [1994 (71) ELT 980] and K. Rajagopal vs. Commissioner [2002 (102) ECR 469], the Tribunal held that entries in the seized note book are not conclusive evidence, to prove the clandestine removal, unless corroborated from other evidence such as purchase of raw material, removal of goods through any transporter etc. 15. Shri S.P. Kesarwani, learned counsel for the applicant submits that the Commissioner, Customs and Central Excise by order dated 19.2.2008, affirmed the Central Excise Duty, after considering the admissions made by Sri Rakesh Kumar Pandey - Manager of the Company and ....
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....maintained by him in his own handwriting and most of these clearances have been made by use of the invoices not issued from the official invoice book. Thus, in view of such clear and categorical admission by Shri Mukul Shah regarding maintenance of such private diaries by him in his own hand writing for transactions made by his firm M/s. Shabroc Chemicals, Kanpur I have no doubt in concluding that such private diaries belong to the party and the transactions entered therein pertain to the transactions made by M/s. Shabroc Chemicals, Kanpur. Therefore, the authenticity of such diaries and contents appearing therein cannot be questioned merely on the grounds that such diaries do not have any title or name of the party. Therefore, the plea of the party on this score have no force at all. 06. The party have also disputed the authenticity of Invoices submitted by the informer arguing that no reliance can be placed on such invoices as the same were not recovered from them. It is true that parallel and multiple set of invoices were not recovered from the premises of the party but on examination of such invoices I find that such invoices are printed in the same fashion and style ....
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.... transport or rate at which such item is supplied is mentioned. Because of availability of these details against each such entry it is very easy to identify the item. It is noticed from other evidence on record that party have supplied Acid Slurry mostly in Plastic Carboys and sometimes in tankers. Thus, where the entry reflects supply through tanker or in carboy it can easily be concluded that the entry pertains to supply of acid slurry. Where no mode of transport/supply is mentioned it is very easy to identify the item from the rates charged by the party as almost similar rates have been charged by the party for the same item which was supplied by them on regular and statutory invoices. Therefore, the plea of the party on this score is baseless and factually untenable and therefore unacceptable. Moreover, Shri Mukul N. Shah, working partner of the party has firmly and categorically admitted in each and every statement recorded under Section-14 that all the entries available in these diaries have been written by him in his own handwriting and the same pertain to clandestine removal of acid slurry and other excisable goods from his factory and that he is ready to deposit excise dut....
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.... afterthought. In this regard I place reliance on the following judgments." 19. In para 9, the Commissioner Excise has examined the parallel and multiple set of invoices and found that the authenticity of such invoice is fully established. After reproduction of the details of some such invoices by way of example, the Commissioner found that the invoices having one serial number, had been used, multiple times by the party, for clandestine removal of excisable goods from their factory. 20. The Commissioner found from the statement of Sri Mukul N. Shah and Sri R.K. Pandey and the documents seized from the diary that there was categorical admission that the quantity of acid slurry noted in the private diaries was removed from the factory through such parallel set of invoices, which was not issued from statutory/regular invoice book. Thereafter relying upon the Supreme Court decision in Collector of Customs, Madras and others vs. D. Bhoor Mall [1983 (13) ELT 1546], the finding of clandestine removal was confirmed. 21. In D. Bhoor Mall (Supra), the Supreme Court held that the department is not required to prove its case with mathematical precision to a demon....
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....r Section 167(8) of the Act, is that the Department would be deemed to have discharged its burden if it adduces only so much evidence, circumstantial or direct, as is sufficient, to raise a presumption in its favour with regard to the existence of the fact sought to be proved. Amba Lal's case, (1961) 1 SCR 933 = 1983 E.L.T. 1321, was a case of no evidence. The only circumstantial evidence viz. the conduct of Amba Lal in making conflicting statements, could not be taken into account because he was never given an opportunity to explain the alleged discrepancies. The status of Amba Lal viz. that he was an immigrant from Pakistan and had come to India in 1947-before the customs barrier was raised-bringing along with him the goods in question, had greatly strengthened the initial presumption of innocence in his favour. Amba Lal's case thus stands on its own facts." 23. The Commissioner also quantified the amount of duty, which was sought to be payable, from the different diaries, after corroborating them to the statutory records. 24. In Omar Salay Mohammad Sait vs. Commissioner of Income Tax, Madras [AIR 1959 SC 1238 (V 46 C 172)] the Supreme Court observed in para 4....
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....ed." 26. In the present case, seizure of documents, and thereafter corroboration of these documents from the statement of Shri R.K. Pandey (Manager of the firm) and Shri Mukul N. Shah (partner of the firm), clearly established that there was clandestine removal of excisable goods. The entries in the diaries with their quantities and the amounts tallied with the seized documents. The firm sold the goods to M/s. M.P. Trading Company on fake invoices, and after sale of goods, the duplicate (fake) invoices were destroyed; if the goods were sold to outstation parties its payment received in cash was given to the owner of the firm, and if received by cheque/draft, it was deposited in the account of M/s. M.P. Trading Company and after drawl from the Bank it was paid to the firm. A fake firm created on the directions of Sri Mukul N. Shah, proved the modus operandi adopted by the party to remove the excisable goods clandestinely 27. The Tribunal has, without referring to the statements and details of the seized material including the diaries, proceeded on the basis that the entries were vague, in which detailed, description of goods of various types was not given. The Tr....