TaxTMI 
TaxTMI 
2001 (3) TMI 1038
X X X X Extracts X X X X
X X X X Extracts X X X X
....ame to be redeemed on payment of a fine of Rs. 10,000/- under Section 34 of CE Act 1944. 2. The case against M/s. BGP made out by the investigating officers, Hqrs. (Preventive), Madras is that they are manufacturers of veneer and plywood falling under Central Excise Chapter heading 4404 and 4408.90 of CE Act, 1985. A visit to their premises on 25.2.1991 and on recording of statements from persons and from some buyers, it revealed that there were three concerns namely M/s. BGP, M/s. BGS and M/s. VE managed by Lalchand Agarwal and his brothers M/s. Pawan Kumar Agarwal and Uday Kumar Mussadi and Ajay Kumar Mussadi as Directors and partners in the respective concerns. M/s. BG & Sons and M/s. VE were working as trading concerns dealing in timber. Another trading concern was also functioning under the name and style of "Lalchand Vijay Kumar" with Directors of M/s. BGP and Arun Kumar Agarwal as Partners. 3. Under letter dated 3.11.1990 and 5.11.1990 M/s. BGS and M/s. VE had sought permission from Assistant Collector for sending logs to M/s. BGP for manufacture of veneers under Rule 57(2) on job work basis. M/s. BGP too on its part filed a declaration/undertaking in respect of that j....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... BGS clearly indicated the quality of plywood as BF bonded/Marine/VWR/Shuttering plywoods. The buyers with whom enquiries were made had also confirmed that the quality of plywood as bonded to be supplied to M/s. BGP under BGS bills were of PF bonded variety. The details of prices quoted in the bills of M/s. BGP from where goods had been cleared to M/s. BGS and the prices at which M/s. BGS had sold to the buyers have all been brought out in the show cause notice and in the Order-in-Original in para 11. 7. It was also found that some of the dealers of M/s. BGP who had been buying ordinary UF bonded plywood had also on some occasions placed orders on M/s. BGP for the supply of PF bonded plywood. However, sales had been made under the bills of M/s. BGS even though there was no bills evidencing purchase of PF bonded plywoods from others by M/s. BGS. Further records have been recovered evidencing production of PF bonded plywood in the factory of M/s. BGP only. Therefore, it has alleged that M/s. BGP had indulged in gross under-valuation of PF bonded plywoods manufactured and cleared from their factory. The details of the bills raised by BGP and M/s. BGS in respect of similar quality ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er concerns viz. M/s. BG & Sons, Madras-112, & M/s. Vijay Enterprises, Ms.-112; (b) removed the excisable veneers without the cover of proper documents; (c) misdeclared/misclassified the costlier and special varieties or phenol formaldehyde bonded plywoods under the guise of ordinary, cheaper varieties of urea formaldehyde bonded plywoods; (d) misdeclared the grades (quality) of ordinary urea formaldehyde bonded plywoods; (e) resorted to under-valuation of veneers and plywoods manufactured and cleared, and realised extra consideration from the buyers thereof, over and above the billed amounts; (f) consequent to under-valuation, failed to compute the correct value of clearances of excisable goods (veneers & plywood) manufactured on its own as well as on job work basis to their sister concern viz. BG & Sons & Vijay Enterprises for determination of exemption and payment of duty; (g) failed to determine themselves their correct liability to duty due on veneers and plywoods so manufactured and removed by them without payment of full excise duty on the correct assessable value; and (h) Improperly maintained the entry books and records; all with intent to evade due pa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....admitted that in the normal course of business, any manufacturer who avails banking facility, always use to show figures more than the actuals only to obtain loans and merely because such higher figures were shown for taking higher loans that would not give room for conclusion that there was manufacture and clandestine removal. In this regard, they relied on the judgment. They stated that the statements dated 25.2.1991, 8.3.1991 and the statement recorded on others and Directors were obtained under duress which were retracted on the very next day, hence they pleaded no reliance could be placed on them. In this regard they relied on the decision of Gujarat High Court decision in the case of Abdul Quader and that of Abdul Ghani Harnian ; ARS Bajaj v. CCE : Leonardo Villarico v. CCE . 11. Describing the process of Marine plywood, they pleaded that the product can be classified only under Chapter heading 4408.10 if it could satisfy the IS 710 -1976 as per Chapter Note 3 to Chapter 44. Further, for manufacturing Marine Plywood, M/s. BGP are not in possession of all machinery's viz. Vacuum cleaning, impregnation plant, testing equipment, etc. They contended that they had written t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... than invoice price recovered form Shri Venkataraman, they contend that Venkataraman was working for M/s. BGP on commission basis and also for several other companies and organisations like Kitply, etc. They pleaded that the seized documents from his premises and slips cannot be relied upon and conclusions drawn as they were not having any evidential value and no copies have been made available to them. 16. As regards the fictitious receipts of amounts into the banks, they pleaded that the allegation that the remittances relate to them and those remittances had been found a place in their books had not been established. They denied all the allegations brought about in the show cause notice. They sought for cross-examination of the following persons: (1) Shri R. Durga Prasad, Supdt. (2) Shri Shenpakamurthy, Standard Timber (3) Shri Sugukar, Vijay Agencies (4) R. Chandrasekhar, Vijay Agencies (5) K. Kesavan, Ganesh Plywoods (6) Mekalay Agencies, Madurai. They were allowed to peruse the documents and took xerox copies including relied documents in the show cause notice and the slips. 17. Cross-examination of witnesses was sought by them. Summons were issued to all the w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng facility with M/s. BGS, let alone to show actual manufacture of Plywood. 18. In para 59.1, the Commissioner has noted that the only claim made relating to manufacture of M/s. BGS and Vijay Enterprises is a claim that they sent raw materials under Rule 57F(2) Procedure to M/s. BGP on job work basis. He had noted the plea both M/s. BGS and M/s. Vijay Enterprises had obtained permission from the department to send raw material for job work to M/s. BGP. However, in para 59.2, he has noted that no further evidence was produced to support the movement of materials, if any, sent to M/s. BGP, the item/product manufactured at the premises of M/s. BGP on job work basis and return and the final process of manufacture, if any, carried out at the premises of M/s. BGS and M/s. VE, under Rule 57F(2), the raw material as such, or after processing, can be despatched to a job worker to get intermediate goods manufactured for further processing at the principal's manufactory. However, as already observed, no evidence in this regard was made available. He has noted that M/s. BGP who are Central Excise Licencee, did not deem it necessary to inform the department before undertaking job work fo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r making veneers, peeled logs are taken to the veneer clipper, for clipping the veneers. Then they are cut into sizes and fed into drier for making the veneers moisture free. M/s. VE had no facility for carrying out the above manufacturing processes and had admittedly, got it done at the premises of M/s. BHP." Therefore, he has held that veneers had come into existence at the factory premises of M/s. BGP who are to be considered as manufacturers of veneers, but apparently, sold under the invoice of M/s. VE to avoid payment of duty. Therefore, he concluded that M/s. BGS and M/s. VE would not have had any manufacturing capability/facility and were utilized by M/s. BGP to account for goods manufactured and cleared clandestinely. 19. The second charge was pertaining to misdeclaration and misclassification of costlier special varieties of phenol formaldehyde bonded plywood, viz. BWR/Marine/Shuttering plywood as urea formaldehyde bonded plywood. The Commissioner has rejected the pleas raised by the assessee in their replies and did not accept the list attached and forming part of the Insurance Policy of M/s. United India Assurance Company filed by them to show that they did not have t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....okepersons of some of the above customers, who had earlier, given statements deposing extra payment, had brought about a different picture viz. that no extra cash amount over and above the billed amount was paid, I find that atleast two of the customers viz., Sri Ganesh of M/s. Ganesh Timber, Sri Jeyasunder of ACS Guruswamy Nadar, had stuck to their earlier version of having paid, either in cash or in kind, extra consideration over and above the billed value. The party themselves have not chosen to cross examine Sri Chandranarayanan of M/s. Sundaram Inds. Ltd., who had also admitted to the existence of a difference between the prices cited in the invoices of M/s. BGS and Gate-passes of M/s. BGP. Even in respect of the others, it is interesting to observe that exceeding not three (viz., Kesavan of M/s. Ganesh Plywood, objection of Shakti Agencies, Sri Saifee of Coimbatore), the others had not chosen to retract till cross examination form their initial statement of having paid more than the billed amount. The party's plea in this regard that many of them did not receive copies of the statements tendered by them till the date of personal hearing, is not convincing. Irrespective of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n turn, sold to customers is 200 to 300%. If this was the extent of margin of profit available to a trading concern, it is not understood why and how the partners of M/s BGS should have floated M/s BGP in 1986, by adding some more partners. This also brings out that in the first place, there could not have been a real sale between M/s BGS & BGP and secondly the first retail sale has taken place only at the premises of M/s BGS & VE and, therefore, the invoice price collected by M/s BGS & VE Minus the permissible deductions, if any, if to be treated as assessable value. 70.0 The discussions supra, have already brought out that, according to the statement of Shri Chandranarayanan of M/s Sundaram Inds. Ltd., they used to negotiate with M/s BGP for purchase of impugned goods and were advised to place orders with M/s BGS and also that they used to receive the goods under the bills of M/s BGS accompanied by the gate-passes of M/s BGP. This also clearly indicated that while clearances took place from the premises of M/s BGP in actual practice the sale to customers had taken place only at the door step of M/s BGS. 70.1 Even otherwise, instances have come to notice as cited in the show....
X X X X Extracts X X X X
X X X X Extracts X X X X
....0.5 A slip in the handwriting of Shri Venkataraman seized from his premises, contained certain details which are in agreement with Bill No. 70 dated 1.9.1990 of M/s BGP issued to M/s Sakthi Agencies, in so far as the name of the party and quantum and thickness of the plywood supplied. The relevant bill has been made for Rs. 60,575.69, whereas the amount shown in the slip is Rs. 1,64,647.66 even though the billed amount is also indicated in the slip. 70.6 Another handwritten slip seized from the premises of Sri Venkataraman shows different rates to different quality of plywood. It also contained selling various types of plywood. The rates mentioned therein exactly corresponded to the landed cost of plywood mentioned on the reverse of the delivery note seized from M/s Ganesh Timber Trading Company. 70.7 Thus, slips have been seized from certain customers showing the actual rates of plywood sold by M/s BGP. These rates have been corroborated by slips seized from the residence of Sri Venkataraman. Hence, it is evident that whatever was admitted by the customers initially at the time of seizure of the slips is truthful and subsequent retraction is only an afterthought. Accordingly....
X X X X Extracts X X X X
X X X X Extracts X X X X
....documents have to be treated as admissible evidence for considerations exchanged. 73.0 Finally, it will be interesting to note that Sri Lalchand Agarwal and his brothers S/Shri Pawankumar Agarwal, Vijay Kumar Moosodi and Ajay Kumar Mussodi are the Directors of M/s BGP. M/s BGS is a partnership concern of the aforesaid S/Shri Lalchand Agarwal and Pawankumar Agarwal along with another brother Sri Arunkumar Agarwal. Similarly, M/s VE is a partnership concern of the wives of S/Shri Lalchand Agarwal and his brother Sri Pawan Kumar Agarwal along with Sri Anantharam. Therefore, the three firms are closely knit companies of the family members of Shri Lalchand Agarwal and his brothers. Combined with this, the other facts narrated above, viz., the actual sale to outsiders having taken place only at the door stop of M/s BGS and M/s BGP selling only at a very suppressed value to M/s BGS as well as to some outsiders, from whom they had received back excess amounts in cash, either directly or through M/s BGS, clearly establish the relationship between the three. Accordingly, the price charged at the door step of M/s BGP as per the billed amount cannot be considered as a real value in terms of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....unsel submitted that during the year 1989 the main appellants BGP had 25 dealers and during the year 1991, they had 43 dealers. The raid took place in 1991 during which time only 19 dealers were checked by the investigating officers. It is his contention that 26% of the purchase of the BGP's clearance were made to one single dealer whose statement has not been relied upon in the show cause notice. Eighteen dealers had admitted paying more than the bill amount to them but retracted their statements on the ground that they were taken under duress by the departmental officers. It is his submission that only two dealers had ultimately struck to their earlier statements i.e. Sriganesh of Ganesh Timber Trading Co. and M/s. Jeya Sunder of ACS Guru Swamy Nadar and whose statements alone have been relied upon by the Commissioner in para 70.3 and 70.4 of his order. He pointed out that they had stated that they had paid some extra amount by depositing in the Vijaya Bank but they did not produce any correlationship to the extra amount deposited with the invoices. Even in the cross-examination they had admitted about the non correlation of extra amount and the invoice amount. They had also ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....xtra consideration found in the account books of the BGS Trading Company and VE Trading Company. There was no un-accounted books of extra payment made against each bill. Therefore, their oral testimony for delivery of extra payment or deposit in the Vijaya Bank is not proved. He submitted that the law requires that every transaction has to be treated independently and proof of maintenance of proper register and entries had been produced to the deposit. On oral testimony given by inimical competitors or dealers on whom, they had claims and counter claims, therefore it cannot be a basis for drawing a conclusion of under valuation. He pointed out that the statements of other dealers who in their cross examination had clearly denied having paid any extra amount and there was no corroboration in respect of these dealers and their transactions being independent, therefore, the Commissioner was not justified in passing a general order without being specific to each of the invoice transaction. He pointed out that the show cause notice had given Annexure A with details of invoices and the value mentioned therein. But the department on the basis of the statement given by Venkataraman which i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nts Company BGP started its operation in 1989. They had SSI registration and other registration certificates. They had taken permission from the Assistant Collector by their letter No. 12.11.1990. They had sent raw materials to carry out some job work to BGS and received back the goods after the BGS completed the process of trimming and cutting the goods to the required size and they were availing the benefit of Notification No. 214/86 CE. There was no clandestine removal of the goods and the sales cannot be taken as dummy sales made by BSG and their clearance cannot be clubbed with the clearances of the appellants. The Commissioner's inference that the customs house documents in the name of Shri S. Agarwal of VE cannot be accepted is not a proper conclusion. Shri S. Agarwal was the authorised person of VE who imported material and there was no disbelief of the evidence of the statutory documentary evidence maintained and their plea should be accepted. 24. As regards only the evidence of the statement of Venkataraman, learned Counsel submitted that the Commissioner's conclusion that the appellants did not press for the cross examination is not correct. They did not give ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rtunity of cross-examination of third party, on whose statement reliance was placed. He further cited the judgement rendered by the Division Bench of the Punjab & Haryana High Court in the case of Pahar Chand reported in 1972 (30) STC 211 which also lays that if the assessing authority was relying on the testimony of a witnesses, then the assessee should have been afforded an opportunity to cross examine. It was not open to the assessing authority to get over this hurdle on the plea that the witness had not been produced by the assessee and the assessing authority acted on material which was not legal. Further reliance was placed in the judgement of the Mysore High Court in the case of Neminath Appayya v. Jamboorao AIR 1966 Mysore 154 wherein it was held that the evidence of the witness must be excluded from consideration when there is a failure to give opportunity to cross-examine the witness. The Tribunal observed that witnesses have been examined behind the back and even those witnesses are keeping themselves away and are not ready to stand to test of cross examination against the statement of defence of the appellants and those statements should not be relied upon. The Hon'....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... in the case of CCE, Delhi v. Advance Automation & Process Control Pvt. Ltd. reported in 1998 (75) ECR 236 also in the case of Alpha Toyo Ltd. v. CCE, New Delhi reported in 1994 (53) ECR 310. On duty being collected on presumption not being enforceable the learned Counsel relied upon the decision in the case of Seshasayee Paper Boards Ltd. v. CCE as reported in 1991 (36) ECR 342 (CEGAT) with regard to computation of duty in different region/State of the Country pertaining to different class of buyers and therefore different sale price being different, sales price being separate should be accepted. He also relied upon the larger bench judgement in the case of CCE Chandigarh v. Taparia Tools Ltd. reported in 1999 (34) RLT 369 (Larger Bench) in support of his plea. As regards the classification of Marine Plywood, it was adopted on the basis of the advertising material which is incorrect and not as per the chapter note. The learned Counsel relied upon the judgement of the Bombay High Court in the case of Blue Star Ltd. v. UOI reported in 1980 ELT 280 (Bom.) : 1987 (25) ECR 69 (Bom) wherein it has been held that advertising material cannot be a criteria for deciding classification. Furt....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Dealer/Commission Agent who retracted the statement immediately after giving them. (d) Dealer/Commission Agent who retracted the statement at the time of cross-examination. 3. Was Sri Venkataraman the liaison officer of the Company if so, the proof of the same. 4. Total number of invoices involved in the demand and whether the entire demand has been raised on Shri Venkataraman's statement, who was not cross-examined. 5. The value on which demand has been made appears to be the selling price, which normally includes elements which cannot be included in the assessable value. Please explain on what assessable value is the differential demand raised. 6. Was there any investigation conducted regarding the flow back of extra amounts collected by Shri Venkataraman to the company? 7. Comments on each point raised in the additional submission enclosed may also be sent. The Dy Commissioner (R & T) Chennai II Commissionerate vide his letter dated 6.2.2001 has sent the reply to the DR in response to his queries. This letter is extracted below: OFFICE OF THE COMMISSIONER OF CENTRAL EXCISE CHENNAI II COMMISSIONERATE; CHENNAI-600035 C.No. V/44/2/15/2001 -R&T ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....en from the above, this list includes the 2 witnesses who retracted their statements immediately. Of the remaining 8 persons, 5 persons retracted their statements during the cross-examination and 3 persons stood by their statements besides providing additional details during the cross-examination. 3) Regarding the proof of Shri Venkataraman being the liaison officer of the company, the same has been dealt with in para 68.4 of the impugned order. In addition to this, the cross-examination proceedings of Shri N. Nagendran, who while retracting his statement has clearly admitted during the cross-examination proceedings that he knew Shri Venkatraman for 10 years as a representative of M/s. E.G. Plywoods. Therefore, even the cross-examination proceedings led to the fact that Shri Venkataraman was acting on behalf of M/s. B.G. Plywoods. The statement of Shri T. Ramachandran also clearly points to this fact. The evidence in the statements of Shri Ramachandran have been taken into consideration by the Commissioner by virtue of the fact that the same was not retracted at all. Moreover, the assessee had in his reply stated that the relations between them and Shri Venkataraman are strained....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ommissioner has given findings in paragraphs 60.1 to 71 on all the issues. He submitted that Venkataraman did not turn up for cross-examination and the Commissioner has noted in his order in paragraph 57.3 that the appellants had not pressed for the presence of Ramachandran and Venkataraman after the hearing on 16.2.1995 and had voluntarily submitted their defence even without their cross-examination. He pointed out that when the appellants have chosen not to press for the cross-examination of Venkataraman's statement recorded under Section 14 of the Act assumes great importance and it cannot be brushed aside, is correct. He was Liaison Officer in the appellants Company and he was authorised to collect money over and above the invoice value in cash. It is not necessary for the Revenue to produce documentary evidence and establish the case with mathematical precision. Once it is shown that the agent was collecting money, from the statement, which is corroborated by slips recovered, then the burden of proof shifts to the respondents to show that no extra cash was received by them. He pointed out that two of the agents had clearly admitted having paid extra amount in cash as noted....
X X X X Extracts X X X X
X X X X Extracts X X X X
....name of Shri S. Agarwal. He also referred to the detailed findings by the Commissioner in para 60.1 on this aspect holding that clearance of Veneer in fact was done by BGS by suppression and non accountal and this finding is required to be accepted. The learned DR also submitted that slips recovered from Venkataraman give the price and rates of various sizes manufactured by the appellants and the slips corresponded to the landed cost which is corroborated by the statement of Sri Ganesh which is not resiled in the cross examination and thus the agent's corroborative evidence is established. He pointed out that the slips recovered from Venkataraman corresponded to the seizure of records from Ganesh Timber Trading Co. and therefore, it establishes the entire information and evidence which could be applied to all the dealers. 28. In counter, the learned Counsel reiterated his contention and further stated that activity carried out by BGS and VE with regard to veneer was not activity of manufacture. The process of trimming and cutting according to size did not result in coming into existence of new goods and BGS had equipment for trimming and sizing and there is no finding by the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ce for cross examination was paramount and was fundamental to prove the undervaluation of principles of natural justice. Appellants claim that there was a serious violation in this respect. The Commissioner has noted that Shri Venkatraman and Ramachandran did not turn up and appellants had agreed to file their written submissions. The Commissioner in his order proceeded to hold that even if they had a right to cross examine him, even then his statement can be taken as corroborative and establishing the facts of undervaluation. We have considered this plea of the appellant. We are not in a position to accept the Commissioner's finding in the light of his own recording in para 57.3 that Shri Ramachandran and Venkatraman did not turn up for cross examination. It can be gathered from this paragraph that appellants had agreed to give their written submissions which, according to the appellant, was to mean that they did not give up the right to cross examine on witnesses not turning up. The Commissioner had asked them to proceed with the next stage which he was entitled to do so. We are inclined to accept this plea of appellant, because the claim being very enormous and huge, it cann....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dence. This alone cannot be the sole criteria for confirming the demands. Neither the answers given by witnesses from Ganesh Timber Trading Co., ACS Guruswamy Nadar & slips seized from Vaitheshwaran Timber Trading Co. can be considered to be corroborative for transaction with regard to other dealers. The reason being that the department has accepted the appellant's prayer for clearance of goods on invoice price under Rule 173C(11) of C.E. rules and evidence to this effect has been produced and there is no serious challenge by revenue that assessee was operating under the provisions of Rule 173C(11) of C.E. Rules, 1944. The Tribunal in its Larger Bench judgement rendered in the case of CCE Chandigarh v. Taparia Tools-Ltd. and Ors. (supra) have held that value of excisable goods is determined with reference to the normal price at which such goods are sold. Where the goods are not sold at the factory gate to any particular class of wholesale buyers, duty on the value of the goods sold to that class cannot be determined on the price at which the sale was effected to another class of buyers. When the price of the goods sold to such class is not ascertainable under Section 4(l)(a), t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ontinued till the case was closed and the Commissioner ought to have produced all the officers including the Venkatraman and Ramachandran for the purpose of Cross Examination. The failure to produce these persons for cross examination has resulted in failure of principles of natural justice as noted in large number of judgements. We have noticed that even the Hon'ble Apex Court has remanded the matters in similar cases to give opportunity to either side to establish their case. It will be, in our humble opinion, unfair on the part of Revenue in not giving opportunity to establish their case merely because the Commissioner was in a hurry to close the case. We note that the Commissioner had proceeded on general premise and on assumptions and presumptions to establish undervaluation. The relevant findings have been recorded. These findings do not show that each of the 241 invoices have been examined and corroboration with regard to undervaluation, in respect of each of the transaction has been noted and findings recorded. Appellant's having permitted to function under Rule 173C(11) of C.E. Rules, therefore, the department and the Commissioner should show that each of the trans....