TaxTMI 
TaxTMI 
2017 (5) TMI 562
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion of the rate contract. On the premise that the appellant is availing SSI exemption on clearance of the goods clandestinely instead of they have cleared the medicines to Kerala and Tamilnadu Government new orders awarded to them from to time which has not been taken into consideration under the cover of parallel invoice without payment of duty. The investigation was conducted on 03.1.2005, the statement of Shri Arun Kheria recorded on the same day again was recorded on 17.2.2005. During the course of search, the officers seized the certain documents and CD, the panchnama drawn on the spot. Thereafter, the summons were issued to the partners of the firm. Again the factory was visited and conducted the search on 22.03.2005. Certain records were further resumed, seized goods and CD was also resumed. The data from the CD was retrieved on 13.4.2005 and 18.4.2005. The data retrieved from the CD was never confronted with the appellant and the appellant came to know about retrieval of the data from the CD at the time issuance of show cause notice. On the basis of investigation, the duty was demanded for the period 2001-02 to 2004-05 on the strength of chart A to F of the show cause noti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fronted with the appellant therefore, the said data is not admissible. He further submits that the appellant sought cross examination of the panch witnesses in whose presence the data is retrieved. The cross emanation of the panch witnesses was not granted to the appellant. He further submits that the allegation that the appellant has shown the clearance on parallel invoices have been entered in the said documents retrieved and seized as well as supplies made through A to Z Pharma. It is his submission that no investigation was made from the customer and transporter, the details of whom was given in the data. Only on the basis of data retrieved from the CD, the demand has been raised against the appellants. As the manner of retrieval of data from the CD is contrary to law, therefore, the data is no admissible as evidence. Moreover, if the same is admitted then it is the contention of the appellant that the entries was in the balance sheet and parallel invoices are fake to show higher turnover to obtain purchase orders from the buyers. In that circumstance, the demand cannot be confirmed against the appellant. 7. It is further submits that the adjudicating authority is heavily reli....
X X X X Extracts X X X X
X X X X Extracts X X X X
....epared some fictitious invoice in order to inflate the supply figure for getting tender. As the appellants were clearing the goods under the cover of commercial invoice without raising the corresponding central excise invoice and accounting the same in the books of accounts have not been reconciled, therefore, the turnover of the appellant exceeded the SSI exemption limit, therefore, they are not entitled to SSI exemption. Transportation of the goods is corroborated by the statements of the transporters and the cross examination has rightly rejected by the adjudicating authority. Therefore, the charge of clandestine removal has been confirmed against the appellants. In that circumstance, the impugned order is to be upheld. To support this, he relied on the following decisions: (1) D.Bhoormull-1983 (13) ELT 1546 (SC) (2) Siemens Ltd.-1994 (70) ELT 305 (Tri.) (3) Cadila Laboratories Pvt.Ltd.-2002 (142) ELT 279 (SC) (4) Eagle Flask Industries ltd.-2004 (171) ELT 296 (SC) 9. Heard the parties and considered the submissions. 10. On-going through the arguments advanced before us, the following issues emerged: (a) Whether in the facts and circumstances of the case, the appellan....
X X X X Extracts X X X X
X X X X Extracts X X X X
....E.L.T. 437 (S.C.)". The Tribunal in that matter has so relied upon the decision in the case of Birla Institute of Technology v. Collector of Customs, 1991 (56) E.L.T 753 (Tribunal), wherein it has been held that delay in submission of certificate will not affect the grant of exemption. Following the ratio of the said decision, we hold that the benefit of Notification cannot be denied to the appellants merely on the ground that the certificate, stipulated in the Notification, has been produced subsequently, for the clearance of the goods when it is not in dispute that the project is financed by the International Organisation and approved by the Central Government. We also agree with the learned representative of the appellant company that the demand of duty is barred by time as in the facts and circumstances of the case, the extended period of limitation for demanding duty cannot be invoked as neither the appellants have suppressed any facts nor made any wilfulmisdeclaration. Besides filing the classification declaration, they had sent intimation also to the Assistant Commissioner about clearing the motor vehicles by availing the exemption under Notification. Further, they had produ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssible evidence if it satisfies the provision of section 36(b) of the Act. The said issue has been examined in the Premium Packaging Pvt.Ltd.-2005 (183) ELT 65 (Tri.-Chennai). 9. On the demand of duty on waste and scrap, again the appellants have made out a strong case on merits. The demand covering the period November, 1993 to September, 1998 is based on certain computer print-out relating to the period February, 1996 to September, 1998. These print-outs were generated from a personal computer of Shri G. Sampath Kumar, a junior officer of the Company, whose statements were also recorded by the department. Admittedly, whatever facts were stated by Shri Sampath Kumar, in his statements, were based on the entries contained in the computer print-outs. The statements of others, recorded in this case, did not disclose any additional fact. Therefore, apparently, what is contained in the computer print-out is the only basis of the demand of duty on waste and scrap. The question now arises as to whether these print-outs are admissible as evidence, in this case. Ld. Sr. Counsel has pointed out that the computer print-outs did not satisfy the statutory conditions. He has referred to the re....
X X X X Extracts X X X X
X X X X Extracts X X X X
....umar in the ordinary course of activities. Again, it was not shown that, during the relevant period, the computer was operating in the above manner properly. The above provision also casts a burden on that party who wants to rely on the computer print-out, to show that the information contained in the print-out had been supplied to the computer in the ordinary course of business of the company. We find that none of these conditions was satisfied by the Revenue in this case. We have considered the Tribunal's decision in International Computer Ribbon Corporation v. CCE, Chennai (supra). In that case, as in the instant case, computer print-outs were relied on by the adjudicating authority for recording a finding of clandestine manufacture and clearance of excisable goods. It was found by the Tribunal that the print-outs were neither authenticated nor recovered under Mahazar. It was also found that the assessee in that case had disowned the print-outs and was not even confronted with what was contained therein. The Tribunal rejected the print-outs and the Revenue's finding of clandestine manufacture and clearance. We find a strong parallel between the instant case and the cited case. N....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... be of : (a) raw materials, in excess of that contained as per the statutory records; (b) instances of actual removal of unaccounted finished goods (not inferential or assumed) from the factory without payment of duty; (c) discovery of such finished goods outside the factory; (d) instances of sale of such goods to identified parties; (e) receipt of sale proceeds, whether by cheque or by cash, of such goods by the manufacturers or persons authorized by him; (f) use of electricity far in excess of what is necessary for manufacture of goods otherwise manufactured and validly cleared on payment of duty; (g) statements of buyers with some details of illicit manufacture and clearance; (h) proof of actual transportation of goods, cleared without payment of duty; (i) links between the documents recovered during the search and activities being carried on in the factory of production; etc. 18. Admittedly, the matter has not been examined as per the test laid down by this Tribunal in the case of Arya Fibres Pvt.Ltd.- (supra), therefore, the demand against the appellant as chart (D & E). 19. Further, we hold that no cross examination of the panchas has been granted, in that....