TaxTMI 
TaxTMI 
2017 (3) TMI 999
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....no. 3 and equivalent penalty has also been imposed on the said appellant. Further, an additional penalty of Rs. 10 lakh has been imposed on Sh. Sandeep Mittal, proprietor of M/s A. S. overseas, Delhi. 1.1 The appellants have been represented by the Ld. Advocate, Sh. A.K. Jain and the Revenue has been represented by the Ld. AR, Sh. G.R.Singh. 2. The Revenue has confirmed the demand mainly on the basis of records recovered from the residential premises of S/s Sandeep Mittal, Manish Mittal. The Revenue confirms the demand based on the entries made in the said recovered records relating to production of Zink alloy ingots by Mittal overseas. Revenue confirms the demand against A. S. Overseas (ASO) after denying them the Modvat/Cenvat credit of inputs on the ground that M/s A. S. overseas did not have any facility to manufacture and sends the inputs to Mittal Overseas. 3. Based on the appeal memorandum and the written submissions the ld. Advocate for the appellants mainly submits as under: A. Mittal Overseas: i. Mittal Overseas (MO), a Sole Proprietary Concern of Mr. Sandeep Mittal- HUF, started manufacturing zinc alloy ingots from February 1998 onwards in a rented premises in Nan....
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...., also started manufacturing zinc alloy ingots from February, 1999 in a rented premises in Aman Puri about 2 Kms away from MO, with the help of a crucible of 500/- kgs, using copper, aluminum and zinc scraps and coking coal, after taking out a Central Excise License and also availing modvat credit. ii. On 09.11.2000, the factory of ASO was visited by Central Excise officers, but the same was found closed/non-working. The department took a view that from April 2000 onwards ASO did not at all manufacture zinc alloy ingots but only issued sale invoices for the same. Therefore the modvat credit of Rs. 39,17,366/- availed during this period by ASO was disallowed and demanded from ASO also imposing equivalent penalty under Section 11AC, completely ignoring that there was no documentary basis to support this allegation of non- manufacture from April, 2000 onwards and that all the buyers of ASO were very much available to prove otherwise and that an amount of Rs. 5,85,000/- had also stood paid by ASO from their PLA, and that section 11AC does not apply to a case of wrong availment of modvat credit. C. Sandeep Mittal i. He has been imposed a penalty of Rs. 10,00,000/- under Rule 209A ....
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....rseas since April 2000. vi. Transporter Shri Kuldeep Singh's statement that after March 2000 there was no loading/transporting of goods from M/s A.S. Overseas. 5.4 Shri Sandeep Mittal: Shri Sandeep Mittal has been adjudged the mastermind behind the evasion of duty of Central Excise of Rs. 1,35,42,241.00 and wrong availment of Modvat/Cenvat credit of Rs. 39,17,367.00 respectively by M/s MO and M/s ASO, where there are inter alia evidences against Shri Sandeep Mittal in the form of his own statements recorded on different dates and Panchnamas drawn on 09.11.2000 and on 13.11.2000. The charges against Sandeep Mittal are that in the capacity of proprietor of Mittal Overseas (MO) and also as partner of M/s A.S. Overseas (ASO), he has evaded excise duty. So, he has been imposed the penalty of Rs. 10,00,000/-(Rupees ten lakhs) as partner of M/s A.S. Overseas under the law of Cerntral Excise. 6. After careful consideration of the evidences on record, we are of the considered view that the appellants namely M/s Mittal Overseas, M/s A.S. Overseas and Shri Sandeep Mittal do not have sufficient force in their pleadings submitted in their appeal memoranda, written submissions and the pleadi....
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....e no employees in the firm besides the two partners. 6.2 Further, the Commissioner in the impugned order based on the Panchnama drawn on 09.11.2000, statements recorded of Shri Sandeep Mittal, partner of the firm M/s A.S. Overseas and based on private records namely notepads, kachcha pads and loose slips concluds in para 58 of the order that- "M/s A.S. Overseas wrongly availed Modvat/Cenvat credit during period April 2000 to October 2000 amounting to Rs. 39,17,366/- since they had not manufactured any excisable goods in their factory during the material period." 7. Considering the evidences mentioned in paras 48 and 49 of the impugned order and the discussions made in the impugned order in the discussions and findings part (in para 41 and onwards of the impugned order), we are in agreement with the impugned order in respect of the confirmation of charges and imposition of penalty against the appellant, M/s A.S. Overseas. 7.1 The Commissioner in the impugned order in respect of charges against the appellant namely M/s Mittal Overseas in its para 63 observes as under: 63. I now come to the aspect of extending benefit of exemption under Notification No. 8/2002-CE dated 01.03.20....
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....ear. Their motive has already been discussed here in above. 7.3 In the case of Shri Sandeep Mittal, who is the proprietor of M/s Mittal Overseas and the partner in ASO, it is very clear that he knowingly and deliberately indulged in facilitation of evasion of duty and wrong availment of Modvat/Cenvat credit by the appellants, namely, Mittal Overseas and A.S. Overseas. In this regard the impugned order in para 62 observes as under: 62. I also find that Shri Sandeep Mittal is Proprietor in MO and the active Partner in ASO. Thus a single person was controlling the affairs of both the units. He alone masterminded the entire game plan of procuring raw material in the name of ASO and diverting the same to MO. I also find that MO was working under exemption under Notification no. 8/2000 and ASO was a unit registered unit sic with the department. The manufacturing of goods to be clandestinely removed was not done at ASO as there was possibility of getting caught. Furthermore, he has knowingly hoodwinked the department, and indulged in diversion of raw material and removal of goods, without payment of duty, which goods he knew were liable to confiscation. Therefore, he is liable to a pen....