AI Drafter 
TaxTMI 
TaxTMI 
2018 (8) TMI 1216
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....al Sales Corporation,K.K. Nayak,Raj Kumar Goel,Sunil Kumar,Prashant Road Lines,Prahlad Rai & Sons,Adesh Tiwari,Govind Agencies,Rakesh Kumar,Tiwari,Agarwal Trading Co.,D.D. Hardware Pvt. Ltd.,Nav Bharat Steel Trading Co.,Lucky Enterprises,G.D. Mittal,Doordevices Manufacturing,Co. , Sukhnandan Bros.,R.N. Tripathi, Versus CC & CE (Appeals), Noida Hon'ble Mr. Anil Choudhary, Member ( Judicial ) And Hon'ble Mr. Anil G. Shakkarwar, Member ( Technical ) Shri Rupesh Kumar, Shri Jitin Singhal & Shri Pravesh Bahuguna, Advocates for the Appellants Shri Rajeev Ranjan, Joint Commissioner (AR), for the Respondents ORDER Per : Anil Choudhary The aforementioned appeals have been filed by the appellants, challenging the Order-in-Original No.39/Commissioner/ Noida/2015-16 dated 29.01.2016 passed by CC & CE, Noida, confirming duty and penalty jointly and severally along with interest and also against Order-in-Appeal No.NOI-EXCUS-001-APP-0215 to 0223-15-16 dated 30.12.2015 passed by CC & CE (Appeals), Noida, upholding duty, redemption fine and penalty on the appellants. As common facts and circumstances are involved in all the app....
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..... The SCN had taken entire sales made by the said customers (dealers) as purchases from the appellant and other named parties. 4. Relying upon the said Panchnama and statements recorded during investigation, it is the case of the revenue that the recovered documents contained details of clandestine manufacture and clearances made by the appellant as well as other named companies/firms which were created by one Shri B.M. Garg, proprietor of M/s Garg Industries, only to fragment the total clearances so as to fall within the purview of SSI benefit. As the documents recovered were not companywise/firmwise, therefore, for the purpose of quantifying the duty demand individually against the appellant and other named companies/firms, the SCN had relied upon statement dated 29.08.13 of Shri Sh. K.D. Shukla (despatch Supervisor of Deepak Hinges). Further, relying upon the alleged statement of Shri Sunil Kumar - Security Guard dated 27.08.13, it is the case of department that the term 'piece' mentioned in the recovered documents would mean 'box' and the term 'box' would mean 'carton'. Relying upon the aforesaid, in the SCN demand of Central excise ....
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....y state who had actually found the documents sought to be relied upon and from where he had found them. The Panchnama simply states that documents pertaining to sale and purchase, manufacture and clearance of goods were found in the room. Moreover, the panchnama is totally silent on the aspect whether the documents recovered were sealed or not, so as to avoid any manipulation and, in case they were sealed, whether any panchnama proceedings were recorded while de-sealing the said records. Even though the panchanama stated to have recovered the CPU of the computer found in the premises for further investigation and the said CPU was sealed with paper seal containing signatures of panchas, department officers and Shri Shukla however, there is nothing in the SCN as to the manner in which the said seal was broken i.e. whether any panchnama proceedings were carried or not. The appellant, in support, relied upon the decision of this Tribunal in the case of Kuber Tobacco Products Ltd. v CCE, Delhi - (2013) 290 ELT 545 (T). 8. We find that this Tribunal in the aforesaid case laid down detailed guidelines to be followed by the officers while preparing Panchnama, in order to verify the trut....
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.... between the concerned premises and the occupants thereof being the persons proceeded against. It should also be disclosed in the panchnama as to whether the premises were at all being used for any purpose or not. e. It is not enough that the panchnama merely records that the officers on search found certain records and that the same are described in some Annexure but it must also give the description of the so-called records. It is absolutely necessary to do so in order to give credibility to the panchnama, particularly when the entire proceedings in that regard are sought to be challenged and disputed. f. It is not sufficient that the Annexure to the panchnama contains a list of documents found but it must give details of the documents stated to have been found in the premises. Thus, in relation to the seizure of documents, it is necessary not only to record that the documents were recovered from the premises but it is also necessary to record a brief description of the exact place where the documents were located in the premises and from where they were seized by the seizing officer. It is further necessary to record as to what steps the seizing officer had tak....
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.... during the course of investigation, the authenticity of which the appellant had seriously disputed, opportunity may be given to them to cross examine. We find that the appellant had given the reasons pointing out certain infirmities, as to why the statements could not be relied upon. The appellant had also referred to various statements which shows that during the course of their recording, documents/record which are voluminous and not feasible to verify at one go, were made to affirm. In this regard, while referring to the statement dated 25.10.13 of Shri B.M. Garg, it was pointed out that, as per his statement, he had read and verified the contents of following statements and documents viz., Panchnama dated 3/4.7.2013 drawn at the office premises at Ambey Complex;Statements of Shri Krishan Dev Shukla, Shri Ramesh Chander, and Shri Rakesh Kumar Tiwari, all dated 4.7.2013;File no.1 allegedly containing 659 pages; File no. 12 allegedly containing 253 pages;File No. 10 and 11 allegedly containing 261 and 381 pages respectively; Statements of 11 employees, in total 17 statements; Statements of 20 customers; Statements dated 6.7.2013 and 5.9.2013 of Shri V.P.Garg;Statements dated 2....
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....nt is based upon certain private records which are seriously disputed by the appellant and, corroborating the same by statements for which the appellant had not been afforded opportunity to rebut. We find that even though the private record relied upon was common but, for the purpose of quantifying the demand on individual appellant, reliance was placed on statement of Shri K.D. Shukla, wherein he had stated to have identified the variety of finished goods manufactured by each company/firm, in the private records recovered during the panchanama dated 03/04.07.13 of Harola Premises. However, the counsel for the appellant had pointed from the record that that the appellant has been manufacturing and clearing the variety of Hinges which, though not indicated in the statement of Shri Shukla, but the statutory invoices recovered by the department from the factory premises of the appellant, clearly shows the manufacture and clearances of such variety. This itself shows that quantification of demand cannot be based relying upon statements and the same is without any basis. There is clear assumption and presumption by the department regarding alleged clandestine activities. In the absence ....
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...."other person". Thus, SSI benefit cannot be denied to the appellant(s) on the ground of using the brand name of other person, in view of settled position of law, as relied upon by the appellant. 17. On the issue of clubbing of clearances, it has been held by the Commissioner that all the companies including the appellant were only a façade created by Shri B.M. Garg, just to avail unauthorized SSI benefit. Reliance is also placed on the SCN dated 20.02.08 r.w. addendum dated 16.09.11 which was affirmed vide OiO No. 73-81/Commissioner/Noida/2012- 13 dated 31.03.13. However, the facts of the case does not warrant clubbing of clearances of all the units as we find that the Commissioner has confirmed the demand jointly as well as severally on each of the companies/firms thus accepting their separate and independent identity, as held by this Tribunal in the case of Punjab General Manufacturing Works Vs. CCE, Lucknow, 2017-TIOL-1837-CESTAT-ALL, and in the case of Bentex Industries v CCE, New Delhi - 2003 (151) ELT 695 (T) affirmed by the Apex Court reported in 2004 (173) ELT A79 (SC). Further, the issue is also covered by the decision of the Allahabad High Court in the case of C....
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.... the basis of sale invoices of the customers, quantified against each company/firm on the basis of statement dated 29.08.13 of Shri K.D.Shukla. We note that though reliance has been placed on 22 dealers statements, but duty has been demanded only on the sales invoices of 12 customers. Nothing has been stated either in the SCN or in the OiO regarding the remaining 10 dealers. We further note that the customers/dealers in their respective replies had clearly stated that they are dealing with the goods of other manufacturers also and during the period covered under the SCN, they had sold goods manufactured by other manufacturers as well. In fact, the said dealers have specifically given the names and addresses of manufacturers whose goods they were dealing in during the relevant period. However, no inquiry was conducted from any of the named manufactures. Nothing has been brought on record by the department to establish that during the relevant period, the said dealers were dealing only with the goods of the appellants and no other goods. In the absence of any such evidence, we hold that the demand based on Annexure '5' cannot be confirmed merely on assumption and presumption....
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....ries relating to receipt of raw material and clearances of finished goods from appellant's factory by relying upon the statement dated of Sunil Kumar - Security Guard. We have already held that no duty could be demanded and confirmed upon the appellant on the alleged File Nos. 10 & 11 due to serious infirmities pointed out in the panchnama dated 03/04.07.13. We have also perused File No. 11, at page no. 372 it is stated that UP16T5570 was used to transport 261 Boxes of Hinges from the appellant. Now as per the Commissioner, relying upon the statement of Sunil Kumar (employee-security guard), the boxes must be treated as cartons. To test the authenticity of the said document vis a vis the case of the department, we find that as per department's case, through Truck No. UP16- T-5570, 261 cartons of hinges were transported from the appellant which would mean a total of 10,440 kgs of Hinges were transported. However, the appellant has placed on record 'Form 47' of the Transport department of UP, as per which the Gross Vehicle Weight i.e. the maximum weight the said vehicle can carry is 7490 kgs only. Thus, it was not even possible to transport 10,440 kgs of hinges. This further....