TaxTMI 
TaxTMI 
2016 (10) TMI 821
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....llation, Commissioning and Maintenance Support of Urban WiMAX equipment in BSNL Kerala Circle, on Turnkey basis for Phase-I from M/s. BSNL, Kerala Circle; and P.O. No. CT/PO/369-10 dated 22.10.2009 for the supply of Next Generation Play Network (GEPON) Equipment from M/s. BSNL, New Delhi. They later secured Purchase Order No. dated 08.07.2010 for Supply, Installation, Commissioning and Maintenance Support of WiMAX equipment in BSNL network on turnkey basis for Project-2 and were supplying the goods as required under the said Purchase Orders. 1 .2 During verification of records, it appeared to the Department that appellants are clearing certain goods under a document "to whom so ever it may concern" and ....
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.... whom so ever concern letters' and (Delivery note'(Way Bills) by mentioning as c not for sale (testing purpose)', without raising invoice and without payment of duty. >uppression of the production and clearance of the said goods in the Daily Stock Account and ER-1 returns. > Mis-statement by initially stating that no job work was required for Wimax and Gepon projects and later claimed as short supply without producing any evidence > Not obtaining any permission for clearance of goods for job work under Rule 16A, B of Central Excise Rules, 2002 > Undervaluation of clandestine clearances vide 'delivery notes' and 'to whomsoever concern' letters by mentioning very low values vis-a -vis purchase order values. >Underva....
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....om the company have deposed the above facts in their statements. The standard of proof in clandestine removal cases has been laid down In various judgements) which ahs not at all been satisfied in this case. There is no discussion on source of raw materials, process of manufacturing, to whom the goods are sold, sale proceeds, etc. v) Detailed reconciliation had been provided by them but not considered by the Commissioner. vi) Various goods such as USB Dongle, Clamp, cable etc. are not manufactured but bought out goods. The activity of assembling them together is manufacture When the individual item is removed under private document, no duty can be demanded as they are not manufactured by the appellant. b. Demand of duty on Freight, Forwa....
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.... intention not to reverse the credit and hence penalty is not justified 2.2. Learned counsel further argued that adjudicating authority has incorrectly confirmed demand of Rs. 94,57,147/- without evidence that appropriate duties of excise was not paid on these goods. During adjudication, they had explained that the duty paid goods, in respect of accessories items and small value items, beyond a shadow of doubt) were procured on excise documents, however during the dispatch of the materials, some of the duty paid materials could not be dispatched and they were later dispatched with the alleged documents 'to whomsoever it may concern' only cover the dispatches. These goods were not produced in the factory, which is an admitted fact, ....
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....spect of packing charges, forwarding charges etc., In the present case, the freight charges themselves are more than 0.5%, hence the assumption that 0.5% is inclusive of packing charges is itself wholly erroneous. 2.3. With regard to amount of Rs. 38,902/- sought to be levied as duty on 'Battery Backup'; they submit that non-payment cannot be alleged since in the ultimate analysis, the total duty as per the contractual values is paid. Central Excise Invoices were prepared for the GEPON Equipment which included value of 'Battery Backups' also, 'However since, batteries were though sent under Central Excise Invoices showing the value as 'NIL', but indicating that the items were already billed at the time of initia....