TaxTMI 
TaxTMI 
2013 (9) TMI 454
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....,66,445/-. It was further observed that appellant No. 1 had manufactured and cleared 106.795 MTs of Ingots/Billets involving Central Excise duty of Rs. 1,61,598/- under parallel set of invoices which were subsequently destroyed by them. A show-cause notice was issued for recovery of Central Excise duty of Rs. 16,28,043/- along with interest and penalty alleging therein that during the period 1997-98 & 1998-99, the appellant No. 1 had been indulging in the suppression of actual production of the MS Ingots/Billets manufactured in their factory and cleared the same clandestinely without their accountal in the statutory record and without duty paying invoices. Penal action under Rule 209A of the Central Excise Rules, 1994 was also proposed against the appellant No. 2 as he was looking after the affairs of the appellant No. 1. In adjudication, the adjudicating authority confirmed the duty demand of Rs. 6,96,198/- along with interest against appellant No. 1 and dropped the demand of Rs. 9,31,845/- which pertained to other goods not manufactured by the appellant no. 1. A penalty of equal amount under Section 11AC was also confirmed along with a penalty of Rs. 1 lakh under Rule 173Q of the....
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....inst the appellants on the basis of the octroi receipt. Both, Shri Sarabjeet Sing, Driver and Shri M.M. Saini, Ex-GM have stated that the truck, which used to transport the impugned goods bearing registration No. PCR-4785 belongs to the appellants, which they have sold in 1998 and the demand is also based on the octroi receipt obtained by the department of the vehicle in question. We have seen the sample octroi receipt, where it bears the transportation of M.S. Ingots and Ingots/Billets. As the appellants are the manufacturer of M.S. Ingots, octroi receipt pertains to iron goods. Nut Bolt, Pig Iron, Billet etc. does not belong to the appellants. This fact confirms that the impugned truck was not wholly used by the appellants. We have seen the show-cause notice also. In show-cause notice the department has also relied on the statement of Shri Murli Manohar (one of the appellants). Shri Murali Manohar in his statement categorically denied that the impugned truck belongs to the appellants firm. Moreover, he has stated that for local transportation they used to take service of the Pal Transport Company and Sharma Transport Company. No enquiry has been made to these transporters whether....
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....jected by the Bench headed by the then President vide a detailed order recorded by him and consequently, the appellants were required to pay the entire amount of duty, interest and penalties imposed on them. 12. From the statement of Shri Saravjeet Singh dated 10-4-2002, I find that he has admitted that he was working in the appellant's factory and was looking after the work of production as well as working as a driver. He has admitted in his statement that steel ingots sold out of Jalandhar to Ludhiana were being sent through trucks requisitioned from M/s. Sharma Transport and those ingots sold in Jalandhar were transported through truck No. PCR-4785. According to his statement, this truck belonged to the appellants and since there were no documents for the truck, the same was not shown in the books of accounts. He has also admitted that he only was driving the truck for supply of ingots and no other person was driving the truck. There is also admission by him that he used to pay octroi on ingots at Octroi Post No. 4 at Jalandhar-Pathankot Road. He has further admitted that this truck was sold to a scrap dealer in August, 1998. 13. In the statement of Shri Madan Mohan Saini ....
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....d and reasonable which warrants no reduction. I also note that the separate penalty of Rs. one lakh imposed on the appellant company under Rule 173Q has been set aside by the lower appellate authority which is justified in view of the equal penalty imposed on the appellant company under Section 11AC. As such, I am of the view that the impugned order requires no interference. Both the appeals are dismissed. Sd/- (Dr. Chittaranjan Satapathy) Technical Member POINT OF DIFFERENCE The following point of difference is placed before the Hon'ble President in accordance with the provisions of Section 129C(5) of the Customs Act, 1962, as made applicable under Section 35D(1) of the Central Excise Act, 1944 :- Whether the charge of clandestine removal without payment of duty against the appellants is sustainable and therefore, the appeals are required to be dismissed as held by the Hon'ble Technical Member. OR Whether the charge of clandestine removal without payment of duty against the appellants is not sustainable and therefore, the appeals are required to be allowed as held by the Hon'ble Judicial Member. Sd/- Ashok Jindal Sd/- Dr. Chittaranjan Satapathy ....
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....Rs. 9 lakh (approximately) finding that part of the Octroi receipts showed transport of different goods other than ingots. Such a finding of fact by learned Technical Member is evident from facts recorded in para 2 of the referral order by the learned Judicial Member. Therefore, learned Technical Member is right to say that Revenue has not proceeded arbitrarily for which he clearly recorded in para 15 of the referral order as to reduction of duty demand to Rs. 6,96,198/- in adjudication itself. 19.4 While in para 7 of the order, learned Judicial Member relied on the statement of Shri Murli Manohar who was Ex-M.D. of the appellant and was also penalized along with the appellant, for his decision, learned Technical Member in para 12 of the order found statement of Saravjeet Singh to be credible. He was working as driver of the aforesaid vehicle No. PCR-4785 while looking after production work of the appellant concern. Shri Saravjeet's statement remained unimpeached without any contrary cogent evidence brought to record. Shri Saravjeet Singh categorically stated in his deposition under Section 14 of Central Excise Act, 1944 that while steel ingots were sent outside Jallandhar (to L....