TaxTMI 
TaxTMI 
2014 (10) TMI 884
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.... M/s. K.P. Marketing. Rs. 50,00,000 (4) M/s. Kamla Kant & Co. Rs. 50,00,000 (5) Shashikant Chaurasia Rs. 25,00,000 and ordered recovery of the same from M/s. KPPPL under the proviso to Section 11A(1) of the Central Excise Act, 1944. 2. Brief facts, reveal that M/s. K.P. Pouches P. Ltd., (hereinafter referred to as M/s. KPPPL for the sake of brevity), located at 46, Rama Road, New Delhi - 110015, were engaged in the manufacture of Gutkha & Pan Masala, under the brand name "RAJSHREE", "SAFAL", etc. falling under the Chapter Heading Nos. 2403 99 90 & 2106 90 20, of the First Schedule to the Central Excise Tariff Act (CETA), 1985. 3. Intelligence received by the officers of the Directorate General of Central Excise Intelligence (DGCEI), Mumbai Zonal Unit, indicated that M/s. K.P. Marketing, Mumbai acting as distributor, were receiving "RAJSHREE" brand Gutkha (hereinafter referred to as "Rajshree" gutkha) manufactured by M/s. KPPPL through Railway Parcel Van cleared without payment of Central Excise duty by M/s. KPPPL. The intelligence also indicated that one Mr. Giri with the help of Carting Agent M/s. Shree Murugan Clearing and Forwarding Agency....
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....e Murugan Clearing & Forwarding Agency deposed on 28-2-2007 that they were clearing consignments of Gutkha, Pan Masala, etc. received through 2138 UP Punjab Mail and one Mr. Giri attended to completion of railway and octroi formalities on behalf of the consignee. Details of clearances of Rajshree Brand Gutkha by M/s. KPPPL, New Delhi and unloaded by M/s. SMCFA on behalf of Shri Pannalal Jain of M/s. K.P. Marketing at CSTM were duly recorded in the Registers/Note Books maintained by M/s. SMCFA. The Registers and Note Books (Eleven documents in all) contained the date wise details on which Rajshree Gutkha was unloaded by M/s. SMCFA through Shri Sevaram Giri. The entries in the Registers and Note Books contained the Train No. 2138, the name of Giri (which is also written as G or Kiri in some of the entries), the quantity of Gutkha unloaded and quantity of Gutkha taken delivery by Sevaram Giri. Details of documents are contained on show cause notice and Order-in-Original passed by Commissioner Scrutiny of the documents resumed from the premises of M/s. K.P. Marketing, Mumbai revealed that they had received 44370 Packages under the cover of Invoices on which duty appeared to have been d....
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..... Yusuf of Null Bazaar and Mr. Gupta at Dharavi; that he had never seen any Central Excise Invoices in his office, nor had he handed over any documents to Yusuf or Gupta on delivery of the Gutkha. (d) Statement of Shri Sandeep Oberoi, Manager, M/s. Om Shanti Logistic Services P. Ltd. (OSLSPL) was recorded on 5-3-2007, wherein he, inter alia, deposed that he was working as Manager in M/s. OSLSPL, that M/s. OSLSPL were into leasing of Railway Brake vans for transportation of goods from Delhi to Mumbai. In further statement recorded on 6-3-2007, Shri Sandeep Oberoi stated that he was the Manager in M/s. OSLSPL and also a Director in M/s. Goldmine Logistics (I) P. Ltd. along with Shri Pravin Thapar and in GMT Logistic Services Ltd. (hereinafter referred to as M/s. GMT for the sake of brevity) he was a Director along with Shri Harjeet Vig. (e) Statements of Shri Manoj Kumar Gautam, Loading Supervisor of M/s. OSLSPL/M/s. GMT were recorded on 13-3-2007 & 15-3-2007, wherein he deposed that he was supervising the loading of Parcels in the Railway Brake van leased in the name of their firms i.e. M/s. OSLSPL and M/s. GMT at New Delhi....
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....s were received for the same; and cash payments were made to employees of Shri Pannalal; that he did not have any bills for the 20 Gunny bags Rajshree Brand Gutkha as these were purchased in cash. 8. Above investigations revealed that M/s. KPPPL had adopted a different modus operandi in view of the earlier seizure effected by the Department by loading the consignment cleared without payment of duty from Indore instead of Delhi where M/s. KPPPL's unit was located and also channeling their consignments through a different rail route [previous route being Firozepur via New Delhi to Mumbai (CSTM) and the present route via Indore to Mumbai Central Railway Terminus] and utilizing the facility of a different railway brake van lease holder to avoid detection. 9. On the basis of above, it is alleged that M/s. KPPPL, 46 Rama Road, New Delhi had, with a deliberate and mala fide intention, removed finished goods viz. 60 bags containing in all 11,01,600 pouches of "Rajshree" brand Gutkha which were manufactured and cleared without accountal and without discharge of Central Excise duty. 10. Since the SCNs issued referred to above were for the Rajshree and Safal Gutkha sei....
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....t against figures wherever name of Giri has been mentioned, those goods/entries related to Rajshree brand gutkha and calculated the demand. Ld. Counsel stated that Giri was employee of railway clearing agent which was stated in his statement recorded on the spot. This is coupled with his name appearing in the records of railway clearing agency. He also made a point that manager of railway clearing agency never stated that Giri was not their employee. Shri Panna Lal Shyam Sukla, dealer of Rajshree brand gutkha, has not admitted that Giri was his employee. Even clearance made in the other name Puja, Kiri, etc. were accounted in the name of Giri without any evidence. They have also raised the issue regarding Giri being presented as their employee. From the records, it comes out that Giri was actually employee of the Murugan Clearing Agency. In the initial statement in his own hand that he is working for Murugan as delivery man. Ld. Counsel also referred to statement made by brake van service provider where reference was made regarding receipt of goods from different persons and service provider never admitted that goods were received only from M/s. K.P. Pouches. 15. A referenc....
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....clandestine nature. 20. On the other hand, ld. DR Shri V.P. Batra, supported the Order-in- Original and stated that Commissioner has elaborately discussed all the events related to the seizure of the goods and have also gone through statements of Shri Kashama Shanker Singh, Manager of Shree Murugan Clearing & Forwarding Agency, Shri Panna Lal Shyam Sukla (Jain), proprietor of M/s. K.P. Marketing, Shri Sevaram Giri, Shri Rajendra Prasad Tripathi, Director of M/s. KPPPL, Shri Sandeep Obero, Manager of OSLSPL, Shri Manoj Kumar Gautam, Loading Supervisor of OSLSPL and Shri P.K. Sharma, Supervisor of OSLSPL, concluded that the goods were of Rajshree gutkha. Modus operandi clearly shown the gutkha was moving through railway brake van on which duty of Central Excise has not been paid and these goods were not asccompanied by invoices indicating payment of Central Excise duty. Statements clearly revealed that Rajshree gutkha were cleared without discharge of Central Excise duty in a very orchested manner. M/s. K.P. Pouches were overseeing distribution through their marketing set up in the name and style of M/s. KPPPL controlled by Shri Panna Lal Shyamsukla. He further stated that it....