TaxTMI 
TaxTMI 
2014 (2) TMI 112
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....Highlights: Month July'98' were recovered from the office located at the first floor of the factory. The charts contained customer-wise details of the sales of the HDPE/PP bags during May, 1998 and July, 1998. The Highlights statement for July98 mentioned the total sales during the month as valued at Rs. 75,15,089/-. Ongoing through the charts, it was found that in respect of clearances to certain customers, the column of invoice no. was blank, though the other particulars like the quantity of the goods sold and the value were mentioned. Total of such clearances during May, 1998 was Rs.13,56,153 and total of such clearances during July, 1998 was Rs.9,05,711/-. Since the concerned employees of the appellant company could not give any explanation for this, it appeared that the goods valued Rs.13,56,153/- during the month of May, 1998 and the goods valued at Rs.9,05,711/- during July, 1998 had been cleared without payment of duty. 1.2 On further scrutiny of the above mentioned charts, it was found that even in the cases where invoice nos. were mentioned, the actual invoices of those numbers and dates had been issued to parties other than those mentioned in the chart and in some case....
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....Rs.7,77,256/- along with interest and dropped the remaining duty demand of Rs.3,87,122/-. He also ordered confiscation of the seized goods with option to redeem the same on fine of Rs.6,000/- . Besides this, he imposed penalty of Rs.7,77,256/- on the appellant company under Section 11 AC, a penalty of Rs.50,000/- on Shri Sunil Mehta, General Manager and a penalty of Rs.5,000/- on Shri A.K. Agarwal, employee under Rule 209 A of the Central Excise Rules. 1.5 On appeals being filed by the appellant company and its employees before the Commissioner (Appeals), the Commissioner (Appeals) vide order-in-appeal dated 11.10.2004 upheld the duty demand and imposition of penalty against the appellant company and also upheld confiscation of the excess bags. However, penalty under Rule 209 A of the Central Excise Rules, 1944 on Shri Sunil Mehta and Shri A.K. Agarwal was set aside. 1.6 Against the above order of the Commissioner (Appeals), this appeal has been filed by the appellant company challenging the Commissioner (Appeals)'s order upholding the duty demand along with interest and penalty under Section 11 AC and also confiscation of the excess stock. 2. Heard both the sides. 3. Sh. Bipin....
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....ce in the name of customer as mentioned in the charts and as mentioned in the invoices, the same is mainly on account of the fact that while the charts mention name of the persons through whom the orders had been received, the invoices mention the name of customers to whom the goods had actually been supplied, that without inquiry with the customers whose names are mentioned in the charts and in the invoices, it cannot be concluded that against the same invoice number, the goods have been cleared more than once to two persons the persons mentioned in the charts and the persons mentioned in the invoices and such cases cannot be treated as cases of clearances of goods more than once against the same invoice, that as regards the figure of sale given in the document Highlights: Month July98 as this document had been prepared by the Sales Department, it also included the cases where on account of cancellation of the orders, the goods had not been supplied and that, in any case, merely on the basis of details of the dispatches given in the computer generating chart, it cannot be concluded that these goods had actually been cleared without payment of duty when there is no confirmation ....
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.... of duty. It is also pleaded that in these cases, enquiry had been made with the customers but the clarification given by the customers has not been relied upon by the Department which indicates that the customers replies, were in the appellant' favour. 6.1 As regards the cases where the appellant's claim is that though the orders had been placed by the customers but there was no supply, the allegation of dispatch of the goods without payment of duty would be sustainable only if enquiry had been made with the customers and it had been confirmed by the customers that the goods had been received or there was evidence of the transporters confirming the dispatch of the goods. In this case neither there is evidence of the transporters nor there is any evidence of receipt by the customers of the goods mentioned in the chart, based on any enquiry conducted with them. While the Appellant plead that enquiry had been conducted with customers but the result of the same has not been relied upon by the Department or disclosed to them and this indicates that the clarifications given by the customers are in the appellant's favour, there is no response of the Department on this point. Therefore, ....
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....d by Invoice No.70 dt. 29.05.98 issued to M/s. Asian Cement is also acceptable. The particulars of Invoice No. 71 dt. 29.05.98 & 73 dt. 30.05.98 issued to M/s. Ramji Bhardwaj Traders for 2000 bags and 5000 bags respectively tally with the details against Sl. No. 22 of the dispatch chart for May'98. 6.2.2 Coming to the cases where in the dispatch chart for July'98 where there are no invoice number and it is claimed that the goods are covered by other invoices, it is seen that on going through the invoice No. 151 dated 25.07.98 issued to Ajay Kumar Khandelwal, this invoice is for supply of 19000 bags valued at Rs. 1,39,800/- which matches with the quantity and value of the goods mentioned against S.No.23 of the July'98 chart and in this regard Appellant's plea that in the chart instead of Ajay Kumar Khandelwal the name Mukesh Khandelwal has been wrongly typed is acceptable. Against Sl.No.20 in July98 chart pertaining to the dispatch to M/s. Goenka Poly Pack of the goods value at Rs.2,18,970/-, no invoice number mentioned. The appellants plea is that in respect of these goods, the invoice no.145 and 146 each dated 23.7.98 had been issued for goods totally valued at Rs.2,18,940/-. O....
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....1998 against which four invoices nos. 48, 49, 50 and 51 are shown against M/s. Sita Ram, the departments objection is that not only the customers names in the invoices issued are different, but the value of the goods are also different. However, it is seen that the total value of the goods covered under invoice no.48, 49, 50 and 51 as given in the chart and as per the value given in the invoices is the same Rs.2,70,540/- and as regards the customer's name, the appellant's explanation is that M/s. Sita Ram is the person through whom the orders have been received for supply to various customers and the goods were actually dispatched to those customers and invoices were issued to them. This explanation is acceptable and such cases cannot be said to be cases of parallel invoices. In some cases, the invoices nos. have been incorrectly mentioned in the chart. For example against sl.no.18 in the dispatch chart for July 1998 in respect of dispatch to IFFCO, Anola, invoice no.142 shows dispatch of bags valued Rs.6,24,037/- . However, the invoice no.142 dated 21.7.98 has been issued to M/s. Rajiv Kumar Sita Ram for sale of HDPE bags valued at Rs.1,27,820/- while it is the invoice no. 143 d....