TaxTMI 
TaxTMI 
2018 (3) TMI 894
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.... by the Assessing Officer with following detailed reasoning: 3.3. Decision: I have carefully considered the facts of the case, the assessment order and the contention of the appellant. The AO has made the addition of G.P. @15% of the sale value of Rs. 2,75,91,738/- on the basis of the investigations carried out and the search and seizure proceedings carried out by the DGCEI. It was held by the AO that the appellant was indulged in under valuation of its sale bills and clandestine removal of goods produced which was subsequently sold out of books. On the basis of the modus operandi of the appellant the book result of the appellant could not be relied upon and thereafter he applied the G.P. rate of 15% and made the total addition of Rs. 41,38,760/-. The detailed discussion has been made in the assessment order which has been reproduced in the preceding paras. 3.4. On the other side, the appellant has claimed that the AO has made the addition on the basis of the outcome of the inquires carried out by the DGCEI and he has not independently pointed out any defects in the books of account warranting the addition in the hands of the appellant. The AO has not given any finding that....
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.... of witness under the provisions of Section 9D of the Central Excise Act, 1944 read With the judicial pronouncements on the issue? 8.4 In view of the settled proposition of law laid down above, estimation of quantity of goods manufactured and clandestine removal of goods by the appellants cannot be slapped on the basis of averages arrived and calculated based on norms of gas consumption in manufacture of 1 MT of frit. It is rightly contested by the appellants that frit manufactured is not covered by any notification issued under Section 3A of the Central Excise Act, 1944 where Compounded Levy has been prescribed and capacity of the units is required to be fixed on gas consumption basis, as done by the revenue. It is observed that Revenue has attempted to adopt an estimation method for demanding duty and proving clandestine removal which is not prescribed by law. 8.6 In view of the above observations made by this Bench it has already been held that method adopted by the investigation to estimate clandestine removal of finished goods is not sound and has to be discarded. However, Revenue was given an opportunity: to strengthen. Their case by corroborating evidence with some mor....
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....a sealed cover. It has been admitted by Shri V.N. Thakkar (Superintendent) DGCEI in the cross-examination before the Adjudicating authority that when an article is seized, the same is placed in a sealed cover and mention of the same is made in the Panchnama. It is also admitted by Shri Thakkar that as he remembers the seized pen- drive was placed in a paper Cover and sealed with adhesive tapes, It is the claim of the appellants that the way the said pen-drive was handled, it is possible that the same could be tempered with as the same was kept in the paper cover sealed with adhesive tapes. A second Panchnama was made on 30.8.2003 where the said pen-drive was mentioned to have been taken out sealed cover when the first Panchnama never mentioned keeping the said pen-drive in a sealed cover. It is also observed that on 30.8.2008 the sealed caver was opened but contents of the silver pen-drive Were not opened on 30.8.2008 but instead another black colour pen-drive was opened. On 06.9.2008 under a Panchnama the said silver pen-drive taken out of the sealed cover and on opening this pen drive in the Tally Folder, no data was found to be available. However, under another Panchnama dated 1....
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....ommissioner, of Customs, Kandla -[2014(301) ELT 119(Tri.Ahmd.)] 10.1 Section 9Dofthe Central Excise Act, 1944 is reproduced below:- 10.2 In the case of J.K. Cigarettes Limited vs. CCE (Supra), following conclusions were drawn by the Delhi High court, in Para 32:- 10.3 In the adjudicating proceedings, a list of witnesses to be relied upon by revenue is disclosed to the appellants alongwith the show cause notice. The reasons For relying upon the statements are also available from the facts narrated in the show cause notice. It is not necessary that all the witnesses should be called by the Adjudicating authority suo-mota for examination in a quasi-judicial proceeding for cross-examination. However, as per the provisions of Section 9D(1)(b) of the Central Excise Act, 1,944, read with the judicial pronouncements relied upon by the appellant every adjudicating authority should call the witnesses when requested by the party against whom those statements are to be used. If by making efforts for a few occasions the witnesses summoned do not appear than automatically the case could be mature for accepting the statements as admissible evidences under Section 9(D)(1)(a) of the Cen....
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.... per Section 4 of the Central Excise Act, 1944 unless actual additional consideration has been shown to have flown back to the appellants. Appellants in these appeals and in Appeal Nos. E/13720/2014 and E/534/2011 have also not admitted during investigation that they have received any additional consideration. In other appeals on the issue of undervaluation investigation attempted to show the flow back of such additional cash flow through the statements of ceramic tile manufacturer and the statements of Shroffs and Angadias. The amount so worked out has been worked out to be Rs. 38,95,860/- as per the statement of Shri Jayesh Patel, Prop. of M/s. Kevel mentioned in Para 9.3.3 of OIO dated 23.03.2011 in the case of M/s. Belgium Glass & Ceramics. This statement clearly conveys that amount of Rs. 38,95,860/- was paid to various frit manufacturers and at the same time mentions that the names of the frit manufacturers are not written against each payment in the concerned documents. Under the above factual matrix appellants had the right to cross-examination the witness especially shroffs and Angadias as to what portion of such payment belongs to a particular appellant. As mentioned in t....