TaxTMI 
TaxTMI 
2017 (12) TMI 7
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....ls including one appeal of Revenue arise from common Order-in-Original No.80-81/2012/C.EX/JPR-II, Commissioner dated 31 December, 2012. The details of the appeals are as follows: - S. No. Appeal No. Appellant's Name Demand/Penalty Reason 1. E/56611/2013 Raghuveer Metal Industries Ltd. Duty - Rs. 23,34,20,556/- Penalty-Rs.23,34,20,556/- Charge of clandestine clearance. 2. E/56612/2013 Raghuveer Metal Industries Ltd. Redemption Fine - Rs. 10,00,000/- Confiscation of goods worth - Rs. 70,49,861/- & Currency of Rs. 66,30,000/- Confiscation under Rule 25 of CER, 2002 [Panchnama dated 15.09.2010 (RUD-1] 3. E/56613/2013 Mr. Anil Pokharna Rs.1,00,00,000/- Rule 26 of CER, 2002. 4. E/56614/2013 Rajasthan Commercial House Redemption Fine - Rs. 2,00,000/- Confiscation of goods worth - Rs. 10,24,676/- & Currency of Rs. 23,00,000/- Confiscation under Rule 25 of CER, 2002 [Panchnama dated 14.09.2010 (RUD-6)] 5. E/56615/2013 Mr. Raj Kumar Pokharna Rs.1,00,00,000/- Rule 26 of CER, 2002. 6. E/56616/2013 Mr. Sunil Pokharna, Director of RMIL Rs.1,00,00,000/- Rule 26 of CER, 20....
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....542/- 3. Billets 68.84 65.225 (-) 3.615 77,722/- 4. Furnace Oil 28.799 0 (-) 28.799 6,77,813/- 5. Scrap (Excisable) 143.564 20.1 (-)125.464 22,58,352/- 6. Scrap (Non-Excisable) 0.625 371.23 (+)370.605 66,70,890/- 7. Runner & Riser 24.991 809 (-) 16.091 3,06,729/- 8. Slag 1821.881 5.85 (-) 1816.031 90,801/- 9. TMT Bars 380.165 626.5 (+)246.335 70,49,861/- 5. The excess 246.335 M.T. of TMT bars valued at Rs. 70, 49,861/- was seized on 15/09/2010. Search of residential premises of Shri Sunil Pokharna, Director of RMIL, resulted into recovery of some documents and cash Rs. 63,20,000/-. Further search at residence of Shri Rajkumar Pokharna, Director, resulted in recovery of some documents and cash Rs. 60 Lacs. 6. Search was also conducted at business premises of M/s Rajasthan Commercial House (RCH) and M/s Rajasthan Steels (dealer/distributor of RMIL), cash of Rs. 23 lakhs and certain documents were recovered. Quantity of 32,55,29.4 M.T. of KAMDHENU TMT Bar, valued at Rs. 19,24,676/- were detained. Investigation was also carried out with the suppliers of ra....
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..... 11. The SCN was adjudicated on contest, vide the impugned Order-in-Original dated 31/12/2012 confirming the demand and penalties along with confiscation of goods and currency as more fully described herein above. 12. That the details of the duty demand is morefully given hereinabove. However the break up of Rs. 23,34,20,556/- is - (a) Based on appellants royalty account, as per books of KIL - Rs. 16,00,60,335/- and (b) Based on entries in the booking registers and GR's seized from M/s New Vikas Transport Company and M/s Khawaja Garib Nawaj Transport Company - Rs. 7,33,57,221/-. 13. Being aggrieved the appellants are in appeal before this Tribunal. Whereas the Revenue is in appeal against dropping of charge of clandestine clearance on account of duplication of demand. 14. The learned counsel for the appellant Mr. B.L. Narsimhan urges, with regard to the demand of Rs. 16,00,60,335/- based on royalty payments as follows: - The learned Commissioner have recorded the finding that the payment (credit) of Rs. 4 lakhs on 04/04/2008 as royalty by appellant to KIL and again debit of Rs. 4,28,104/- on 30/04/2008, in appellants account with KIL shows that the total royalty pa....
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.... transaction on the debit column and the credit column have been added, arriving at erroneous conclusion. Thus, we hold that the show cause notice with respect to the demand of Rs. 16,00,60,335/- is erroneous and not sustainable. Accordingly, we set aside the demand of Rs. 16,00,60,335/- in respect of royalty payments by appellant to KIL, and remand the matter to the learned Commissioner for re-verification of the mistake in calculation, apparent on the face of record. 17. Further the Ld. Counsel for the appellant submitted on the issue of, stock verification and related findings of Ld. Commissioner, that no actual stock taking was done by the officers and the statements recorded during search and investigation were under pressure, is not correct. This is clear from the immediate and repeated retraction filed by appellants before DGCEI & others. Further, one Shri Daulat Ram, one of the Panchas stated that he did not witness the Panchnama proceedings and was called only at the end of search for an hour to sign the statements. The entire Panchanama loses its credibility and becomes void. He added that when Panchanama proceedings itself is doubtful, entire case of the Department ba....
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.... the course of investigation. Further, no statement of Naveen Tyagi, who maintained the said diary, was recorded which is a serious lapse of investigation. The Affidavit of Naveen Tyagi substantiates the explanation of the appellant. Therefore, he submitted that no clandestine manufacture or clearance could be proved on this ground. 23. He further submitted that the allegation of clandestine clearance can be confirmed only on the basis of positive and tangible evidence, and the same cannot be based on mere presumptions and assumptions. In support of this submission, he placed reliance on following decisions: - * Continental Cement Company v. UOI, 2014 (309) ELT 411 (All.) * CCE v. Brims Products, 2011 (271) ELT 184 (Pat.) * CCE, Chandigarh-I v. Laxmi Engineering Works, 2010 (254) E.L.T. 205 (P & H) * Ashutosh Metal Industries v. CCE&ST, Delhi, F.O. No. 50477/2017-CU[DB], dated 25.01.2017 * Nabha Steels Ltd. v. CCE, Chandigarh, 2016 (344) E.L.T. 561 (Tri. - Chan.) * Sunrise Food Products & Ors. v. CCE, Delhi, 2017 (1) TMI 84 - CESTAT NEW DELHI * M/s. S.H. Haryana Wires Ltd. & Ors. v. CCE, Faridabad, 2016 (10) TMI 449 - CESTAT NEW DELHI 24. That the entire ....
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.... inconsistency among the records (booking register and the loose GRs) resumed from the transporter which have been relied upon by the department. Thus, the evidentiary value of these records becomes doubtful. A bare look at the booking register would amply evince the fact that the same is nothing better than a rough record. He added that these submissions were given even during the reply to the SCN, however, the same has not been considered by the Ld. Commissioner. This stand of the appellant is not an after-thought. Rather this is based on the cross-examination of Shri Moin Khan, Proprietor of the transport entities, whose statements were relied upon by the department. The responses to the Questions 8, 9 and 14 of the cross-examination supports their contention. 29. It have been held by this Tribunal repeatedly that charge of clandestine clearance cannot be confirmed merely on the basis of third party records, in the absence of any corroborative evidence. Ld. Counsel placed reliance on following decisions: - * Bhawani Moulders Pvt. Ltd. & Ors. v. CCE, Raipur, 2017 (1) TMI 493 - CESTAT NEW DELHI * M/s. N.R. Sponge Pvt. Ltd. v. CCE&ST, Raipur, 2015-TIOL-1600-CESTAT-DEL *....
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....ing register further falsifies the stand taken by the Appellant that all entries made with respect to Kamdhenu TMT in the booking register are not actually transported. On the contrary, these GRs further reflect the clandestine clearances of goods by the Appellant. 35. The stand of the Appellant that all bookings reflected in the booking register of the transporter and for which GRs were prepared may not have been actually transported is not acceptable and has to be considered as an after-thought. Regarding other observation of the Commissioner to confirm the charge of clandestine manufacture and clearance against the appellant, the Ld. AR submitted that Physical stock taking leading to Shortage and excess of raw material in the factory was done in the presence of the employees of the factory. As per the cross examination of Shri Daulat Ram, even if he was present in the factory only for an hour and did not witness the physical stock taking, this does not mean that stock taking did not take place. The employees of the Appellant had expertise in weighment which must have been relied upon by the officers. 36. He further submitted that as detailed in Para 19-24 of the SCN dated ....