TaxTMI 
TaxTMI 
2014 (9) TMI 296
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....d (RAIL for short) and La Fabrica are engaged in manufacturing of machinery as well as for reconditioning of the machines respectively. On 24th, 25th and 26th September, 2005, the petitioners factory and residential premise of the Manager were searched and various documents were seized. Statement of the Managing Director was recorded on 16-11-2005 and his statement was also recorded on 4-1-2006. A letter on 18-11-2005 was sent to the Commissioner by the Managing Director stating therein that the details furnished by way of the statements was under duress and pressure. There was an arrest of Managing Director soon after recordance of his statement on 4-1-2006. 3. After an extensive investigation, which included recording of statements of various purchasers and visit of premises of various customers, a show cause notice was issued on 19-9-2006 by Commissioner, Central Excise and Customs, Rajkot. This was duly adjudicated and duty demanded by way of the show cause notice was confirmed on the ground of less quantity found during the visit to the factory and the clandestine removal of scrap on issuance of parallel invoices and also on the ground of issuance of invoices in the na....
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....and for training the employees. As documents like RG 23 Registers, invoices, commercial invoices, RG 1 registers, RT 12 returns, etc. were generated during the training process, earnest request was made to get the hard-disc examined by a technical expert so as to draw a point home that this entire data had been generated within a very short span when the training sessions were conducted by the companies. 7. Counsel for the assessee urged this Court that the Order-in-Original has completely disregarded the basic principle of natural justice as also overwhelming evidence presented before it and, therefore, the conclusion arrived at by the authority and thereby saddling the petitioner with the liability of huge amount was absolutely unjustifiable and contrary to the well laid down principles of law. Learned counsel had submitted that in the aftermath of earthquake in the year 2001, it was virtually impossible for the petitioner to conduct its business and yet inflated figures have been worked out for calculating the transaction during that period. It is urged that the loan worth Rs. 4.5 crores had been taken from the institution like GIDC, GSFC, etc., which since could not be ....
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....pects only in connection with the issue of waiver of pre-deposit which is at large in this petition. Law provides for waiver of deposit of duty and penalty amount, pending the Appeal. Section 35F of the Central Excise Act reads as follows :- "35F. Deposit, pending appeal of duty demanded or penalty levied. - Where in any appeal under the Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Central Excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied : Provided that where in any particular case the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interest of revenue : Provided further that where an application is filed before....
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....t will not be out of place to make a mention at this stage that the emphasis all along on the part of the learned senior counsel for the petitioner is that the demand of huge sum of duty and penalty is based on presence of documents in computer and the very base is very shaky inasmuch as the documents of all kinds including bill book, lorry receipts, cenvatable invoices, recovered from the factory of the appellant of Shri J.A. Juneja, Deputy Manager, were generated during the run of the new software developed by the Company. During the course of training, employees were being trained using new software developed by the Company. It is also insisted that RG 23 register, supplies invoices, commercial invoices, RG-1 register, RT-12 return, etc., unfailingly lead to vindicate stand of the petitioner that these documents were result of running new software during the training process. As per the say of learned counsel, data generated would be within the span of 2 to 3 days of training programme held by the Company for acquainting all the employees with the new software. Insistence was made for examination of the hard disc by technical expert of Forensic Science Laboratory and adjudicatin....
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....is point. Petitioner depended on these facts to establish prima facie case. 17. It can be noticed from the findings of the Tribunal that none of these submissions found favour with the Tribunal inasmuch as it found aforementioned evidence prima facie in the form of bill book, lorry receipts, cenvatable invoices RG 23 register, commercial invoices, RG-1 register, RT-12 return, etc. to top all these, it found that the documents having been signed by the authorized signatory and that let the Tribunal not to accept the version of the petitioner. 18. In our opinion, it would not be desirable to dissect factual matrix presented before us, as possible of purchase to either side cannot be ruled out on account thereof. Moreover at prima facie level the signature of the authorized signatory on all these documents cannot be viewed in innocent manner. Surprise expressed by the Tribunal on such signatures particularly if these documents where part of training session is not leading to any infirmity in the logic of the Tribunal. No Company or the Director of the Company of having such vide experience in manufacturing would attempt to sign the documents which would favour of origi....
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....d hire purchase finance from GSFC totalling Rs. 4,22,85,000/-. The turnover of the Company was only Rs. 1 Crore at that point of time. It was difficult for the Company to pay even the interest amount. It defaulted and it became Non Performing Assets (NPA). Therefore one time settlement was arrived at. However, the same could not be honoured by the Company for want of fund and therefore, their debts were assigned to a Reconstruction Company known as Invent Reconstruction and Assets Finance Company Limited registered with the Reserve Bank of India. It is also further pleaded that with the said condition of the Company present management is only managing the show. It does not have any profit generation and except for just continuous operations, absolutely no amount is left for Company to deposit such huge sum of Rs. 50.00 lakhs. 21. We could notice from the documentary evidence brought on the record that profit and loss account for the year ending on 31st March, 2011, Income from the sale of the Company is to the tune of Rs. 7,92,44,542/- whereas profit and loss account for the year is (-) 10265968/-. Reserve and surplus at Schedule II reflects under General Reserve (-) 587854....