AI Drafter 
TaxTMI 
TaxTMI 
2017 (10) TMI 1022
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....the demand was upheld, in view of the admission of the Director. As regards the, demand of Rs. 11,953/- on alleged clandestine removal of finished goods manufactured out of short found MS Scrap and Runners & Risers, it was observed that the demand was confirmed on sole basis of the statement of the Authorized Signatory/Director without adducing any corroborative positive tangible evidence. But in view of the alleged shortage having been consumed in the manufacture of finished goods being a mere assumption and there being no corroborative and tangible evidence, the demand was set aside. So far the demand of Cenvat credit amounting to Rs. 38,55,429/-, as wrongly availed and utilized it was ordered to be recovered. Taking note of the facts on record that it is not disputed by Revenue that the receipt of inputs under dispute have actually been utilized for production and the finished goods cleared on payment of duty, in view of other corroborative evidences. It was held by ld. Commissioner (Appeals) that the said demand is not tenable and was set aside. So far as the penalty is concerned only penalty to the extent of Rs. 19,177/- was maintained on the Respondent No.1 - M/s Good Earth S....
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....hat purchase orders for raw materials were placed telephonically and mainly raw materials used to be transported from suppliers of Ghaziabad by transport arranged by them. In the statements recorded on 24/11/2004 Shri G. K. Bansal, Director of M/s Bansal Structural (P) Ltd., Ghaziabad; Shri Vijai Sahni, Proprietor of M/s V. K. Enterprises, Ghaziabad & Shri Lalit Kumar Sharma, Proprietor of M/s Bhawna Steels, Ghaziabad stated that only invoices were issued without accompanying the goods on request of the Respondent No. 1 and no goods had been transported. Further enquiries made from M/s K. L. Concast (P) Ltd., Ghaziabad; M/s Rathi Super Steels Ltd., Ghaziabad & M/s Rashtriya Ispat Nigam Ltd., Ghaziabad to ascertain the quality of goods sold to various dealers namely M/s V. K. Enterprises, M/s M. B. Industries, M/s Bhawna Steels respectively who had issued Cenvatable invoices to the Respondent No.1 revealed that the goods supplied to above mentioned dealers were of prime quality except in case of M/s M. B. Industries to whom no sale was effected during 2002-03 and 2003-04. Further enquiries made from Regional/District transport Officers regarding details of the vehicles shown to had ....
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....nable opportunity of personal hearing to them. The case was re-adjudicated vide Order-in-Original dated 12/11/2008 under which demand of Rs. 38,55,429/-, Rs. 19,177/- & Rs. 11,953/- alongwith interest were again confirmed in addition to imposition of a penalty of Rs. 38,86,559/- under Section 11AC of Central Excise Act, 1944 read with Rule 25 of Central Excise Rules, 2002. Penalties of Rs. 4,50,000/- & Rs. 50,000/- were also imposed upon Respondent No.2 & Respondent No.3 respectively under Rule 26 of Central Excise Rules, 2002. 3. This is the second round of litigation. Earlier vide Order-in-Appeal dated 28/06/2007, ld. Commissioner (Appeals) had remanded with the direction that cross-examination of the persons on the basis of whose statements it was alleged by the Department that the Respondent No.1 had not received the raw material/inputs and it had availed Cenvat credit of duty paid on such raw materials/inputs, should be allowed and the appellant should be granted personal hearing as per the principles of natural Justice. The Adjudicating Authority in the second round took steps to conduct cross-examination of the persons who had made contradictory statements, inasmuch as, i....
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....d under duress. Therefore, setting aside of demand of Rs. 38,67,382/- by Commissioner (Appeals) is not justified. Further, it is urged that the deletion of demand of Rs. 11,953/- is not justified as the Authorized Signatory of the Respondent No.1 had admitted such clandestine manufacture and clearance. Accordingly penalty set-aside may also be retained. 4. The ld. Counsel, Shri Amit Awasthi, for the respondents have taken me through the facts and the detail findings of the ld. Commissioner (Appeals) and states that the ld. Commissioner (Appeals) have taken note of the facts on record, particularly the fact that the appellant have regularly manufactured and cleared excisable goods on payment of duty and have regularly filed the returns with the Revenue, which have never been doubted at any stage. Even in the present proceedings, it is also not the case of Revenue that the respondent has procured raw materials from some other sources and obtained the Cenvat credit paying documents from the other sources. In this view of the matter, the ld. Commissioner (Appeals) have rightly held that the allegation of receipt of Cenvat credit documents without the goods - raw materials is not mad....
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....hekhar, SIO, DGCEI, Kanpur, the main Investigating Officer in the proceedings. The next date fixed on 29/08/2008 on which date the aforementioned three persons were also summoned. On 29^th August, 2008, the counsel for the assessee sought adjournment by the previous letter dated 11/08/2008. Thereafter, another date was fixed on 23/10/2008. Summons was served on Shri G. K. Bansal & Shri Vijay Sahni by the Officers of the Revenue. However, summons to Shri Lalit Kumar Sharma, Proprietor of Bhawna Steels, could not be served in as much as the firm was lying closed. Shri Vijay Sahni did not appear on the date fixed. Shri G. K. Bansal, Director of Bansal Structurals Pvt. Limited, Ghaziabad, acknowledged the receipt of summons, stated that as he is recuperating after surgery hence, is unable to appear on the said date 23^rd October, 2008. Shri Shashi Shekhar, SIO, DGCEI, Kanpur appeared for cross examination but counsel for the party did not come to attend and had sent request for adjournment, on medical grounds. I find that the Adjudicating Authority has failed to follow the directions of the ld. Commissioner (Appeals) to ensure the attendance of the witnesses in spite of all the powers ....