TaxTMI 
TaxTMI 
2017 (6) TMI 813
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.... in the manufacture of wood veneers falling under chapter 44 of the Central Excise Tariff Act. Simultaneous search operation was carried out at the premises in the compound including four factories M/s. National Ply Boards, M/s. Arch Ply Boards, National Veneer Products (NVP) and M/s Alps Veneers and the factory guest house on 24.09.2003. Searches were also conducted at the residential premises of the proprietors and other key personnel of the factories and the business premises of some select dealers / customers of the said units on 24.09.2003 and subsequent dates. The investigation undertaken by the Revenue concluded that NVP had evaded Central Excise duty through - (i) under-invoicing of their products (viz. veneers) and (ii) mis-declaring higher quality veneers as low quality veneers. Investigations conducted also revealed that invoices issued by NVP reflected only part of the actual price recovered from their customers. Central Excise duty was paid on the prices shown on the invoices. The remaining part of the price was recovered in cash through their representatives and the same was not brought on statutory records as well as their account books. Further, in....
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....preparing all the Central Excise records on the computers; that he used to prepare invoices of NVP; while maintaining RG I they do not specifically mention the grade of veneer or its quality; that he prepared the invoices as instructed by Shri Ishaq who told him the price and the grade to be shown in the invoice. He also stated that in the invoices grades were shown as A, B and C and that A grade veneer had the highest price followed by B and C. (iii) Sh. A. Ishaq, Manager, M/s National Veneer Products instatement dated 24.09.2003; stated that the pricing pattern is decided by Iqbal, P.A. holder. The real sale value of the products is not shown in the invoices and a considerable portion of the value is collected separately in cash. The excess realisation is directly collected in cash by himself or by Sh. Iqbal, P.A. holder. (iv) Sh. Iqbal E. Maklai, P.A. holder in Statement dated 25.09.2003 deposed that He is responsible for the overall activities and performance of all the three units including NVP. The selling prices of each quality of products is decided by himself and Sh. A. Ishaq. The amount shown in invoice is settled through bank. However, the price shown i....
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....e book for about 6 months has been applied for all clearances for a period of about 21 months; that the evidences in the form of the statement of junior officials and other staff member of the Company on the basis of which the show cause notice has been issued are uncorroborated and unsubstantiated as the same have not be verified from the dealers; the evidences in the form of documents in respect of the accounts of the Company relied upon in the show cause notice are uncorroborated as they are not accompanied with the statement of the authors or the statement of the dealers with whom the transactions are alleged to have taken place. 7. The Commissioner finally passed the impugned order in which he confirmed the duty demand of Rs. 11,91,671/- as against the demand in the show cause notice of Rs. 39,80,193/-. He reduced the demand from the show cause notice by restricting it only to the figures obtained from seized documents viz. diary, note books and print outs recovered during search. 8. Aggrieved by the part of the order where the ld. Commissioner has confirmed the duty demand in respect of undervaluation along with penalties, the appellant has filed the present appeals. On....
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....other plywood manufacturers who were similarly placed. The evidences recovered by Revenue in the other cases were also similar. The Hon'ble Tribunal in some of its earlier decisions, has already remanded the adjudication orders covered in those cases for denovo decision. The following cases have thus been remanded by the Tribunal: a) CERA Boards & Doors - [2010 (249) ELT 550 (T]) b) Hero Plywoods - [2009 (248) ELT 205 (T)] c) Noble Plywoods -[ 2009 (248) ELT 330 (T)] d) Prestige Boards - [2009 (248) ELT 313 (T)] e) Thumbay Holdings - [2011 (272) ELT 225 (T)] f) National Boards - [2014 (313) ELT 113 (T)] 11. Shri P RV Ramanan, ld. Special Counsel arguing the case for the department submitted as follows: (i) In his statement dated 24.09.2003, Shri Ishaq, Manager, NVP, clearly explained the modus of collection of amounts in excess of the invoiced amounts by cash or DDs and the manner of recording the production in the daily stock account without indicating the grade. He also admitted to having collected additional amounts in cash. (ii) Shri Iqbal Maklai, PA holder from the Proprietor and the person responsible ....
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....is not necessary to provide proof of collection of the extra amount in each and every case of sale. (ix) Revenue would rely on the following case law in this regard: H.M. Abdulla 90 ITR 271 (SC), Gulabchand Silk Mills - 2005 (184) ELT 263 (T) and Rajkamal Plasmolds 2006 (200) ELT 571. (x) The entries found in the seized records have been corroborated by the key employees of NVP, who were holding responsible management positions and one of them was the PA Holder and the Proprietor of appellant firm. 12. He also argued that in the facts and circumstances of the present case, the appeals filed by M/s NVP merit rejection and the Revenue's appeal seeking to confirm the duty demand as per show cause notice may be allowed. 13. Heard both sides and perused the records. During the course of search undertaken by the Revenue officer against NVP and other connected persons, certain private documents, note books and diaries as well as floppy disc were seized from the factory premises as well as common guest house in the factory compound. Upon analysis of these documents and after recording the statements of Sh. Srichand Agicha, Proprietior, Sh. Ishaq, Manager and Sh.....
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....After carefully analysing the evidences as above, we are led to conclude that the allegation of under invoicing is well established on the basis of the investigation done by revenue. The seized records indicate both the recovery of "billed amounts" as well as additional amounts recovered as "OA". by cash. The entries found in the seized records have been corroborated by key employees of NVP, who were holding responsible management positions. Sh. Maklai, P.A. holder is one of them. The Prop. in his statement clearly stated that the factory was managed by Sh. Maklai, consequently, admission by the P.A. holder assumes significance. The statement of other employees of NVP not only fully corroborates and supports the documents recovered, but also clearly brings out the fact that NVP was recovering amounts in addition to invoiced prices which were not part of the assessable value of the goods for purposes of charging excise duty. The accessed private records were in fact maintained by the staff of the office and contained information correlatable to the invoices which are statutory records. Consequently, these records cannot be ignored and can be made basis for confirming the allegation ....
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....case w.r.t. the appellants, the invoice values cannot be regarded as transaction values. This is because one of the necessary conditions for the existence of a transaction value on each removal at the factory gate is not satisfied. Private records maintained by responsible employees duly corroborated by the same employees without any contradiction in their versions point to the fact that appellants did collect certain amounts in excess of the amounts indicated in the invoices and that there were instances of that nature from January, 2003. Consequently, the transaction value as shown in the invoices has to be rejected and resort has to be had to the provisions of Central Excise Valuation Rules, 2000 to determine the assessable value for charging duty. Since only specific situations where the invoice value may have to be adjusted to include certain costs of materials and services not forming part of the transaction value are covered under Rule 6 of CVR, 2000, the re-determination of value in respect of the present appeals has to be done in terms of Rule 11 of CVR, 2000. In other words, resort has to be had to valuation based on the best judgment of the assessing officer. The a....