TaxTMI 
TaxTMI 
2018 (10) TMI 616
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....2 of the First Schedule to CETA, 1985. The appellant was availing SSI Exemption under Notification No. 8-9/2003-CE dated 01/03/2003. On 25^th July, 2007 Anti-Evasion branch of Central Excise intercepted a truck bearing Registration No. U.P.14J-7877 near Jain Dharamkanta, Sikandrabad. The said truck was found loaded with MS Flats. On being asked, the driver of the truck - Shri Ajay Chaudhary informed the Officers that the goods were loaded by him from the factory premises of M/s Prakash Ispat Udyog Pvt. Ltd. (hereinafter referred to as 'M/s Prakash Ispat' for short), the driver produced Bill No. 111 dated 25/07/2007 issued by M/s Rahul Enterprises, Ghaziabad, in the name of M/s Swadeshi Steels, Ghaziabad pertaining to the consignment of MS Flats loaded in his truck. The driver also informed that chowkidar of M/s Prakash Ispat also accompanied him for the weigment. Hence, the Officers visited the factory of M/s Prakash Ispat and resumed records and seized the raw material, finished goods in the factory and also the truck No. U.P.14J-7877 and the goods loaded therein and also resumed the records. The Panchnama was also drawn on 25/07/2007. During the search proceedings a register was ....
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....g with loose weighment slips of Jain Dharamkanta. That the details of documents recovered from their factory premises remain inventorized in Annexure-A to the Panchnama. That the value of finished excisable goods i.e. MS Flats removed from their factory during the year 2007-08 had exceeded the exemption limit of Rs. 1.5 Crores. That they have neither taken registration nor apply for Central Excise registration. That subsequently M/s Prakash Ispat preferred Writ Petition No. 1188 of 2007 before the Hon'ble Allahabad High Court praying for quashing the directions issued by the Assistant Commissioner vide his letter dated 30/07/2007 and for directions to the Department for not taking any coercive steps against them by order dated 13/09/2007 Hon'ble High Court directed - the appellant shall appear and participate in the proceedings and take necessary steps in the light of the impugned notice dated 30/07/2007 and further the goods seized on 25/07/2007 may be released to the appellant provided they furnish security in cash to the tune of Rs. 3,40,000/-. In compliance to the order dated 13/09/2007 of Hon'ble Allahabad High Court, the seized goods and trucks were released to the appell....
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....responsibility and is transported through their own trucks normally. The freight is included in their bill and is not charged separately. The goods are cleared on bill which is signed by their accountant Shri Sivram. Due to ignorance, no annual declarations regarding value of goods cleared in the preceding year were filed by them with the Central Excise Department, they are engaged in the manufacturing of MS Flats since 1997, earlier they were registered with the Central Excise Department but in the year 2000 they have surrendered their registration. Further statement of Shri Praveen Bansal Director of M/s Prakash Ispat was also recorded on 30/10/2007, wherein on being confronted with the Sr. No. 3 & 4 of the Annexure-A to the Panchnama and on being asked to explain as to who has maintained these writing pads and what does these pads contain. Shri Praveen Bansal inter-alia stated that these writing pads were maintained by one of their employees Shri Ranjit and these writing pads contains the details of expenses of their factory. Shri Praveen Bansal on being confronted with the Sr. No. 2, register resumed vide Sr. No. 7 of Annexure-A to the Panchnama, and on being asked about Sr.....
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....asis and the account is being maintained by them in a copy which is paid by Shri Ranjeet of M/s Prakash Ispat at the end of each month. That in all the weighment slips relating to weighment of goods of M/s Prakash Ispat, they write "AM Baki". Accordingly, it appeared to Revenue on the basis of statement of Shri Rajendra Prasad Jaiswal, that the weighment slips containing the inscription "AM Baki" pertains to weighment of goods of M/s Prakash Ispat as it was being referred to by its erstwhile name "M/s Agrawal Metals" in abbreviated form - "AM" and the term "Baki" means that the payment for the same is due. Further, during investigation the statement of Shri Rich Pal Bansal Manager of appellant's company M/s Prakash Ispat was also recorded on 24/03/2008 wherein he stated that he is working with the appellant since 1997; that the land on which the factory of M/s Prakash Ispat is situated and running was purchased from UPSID by his younger brother Shri Ved Prakash Bansal and the said land is still in the name of Shri Ved Prakash Bansal. Earlier this unit was being run in the name and style of M/s Agarwal Metal Industries, was running at the said plot which was purchased by M/s P....
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.... Excise duty in respect of their clearances from their Unit-II situated at Sikandrabad. It further appeared that under Clause 2(v) of Notification No. 8/2003-CE dated 01/03/2003 read with Notification No. 8/2007-CE dated 01/03/2007 as applicable to the relevant period stipulates that where a manufacturer clears the specified goods from one or more factories, the exemption in his case shall apply to the aggregate value of clearances mentioned against each factory. Accordingly, on the basis of information/records submitted by the appellant a chart had been prepared showing clearances of finished excisable goods i.e. MS Flats during the period 2003-04 to 2007-08 (up to 22nd October, 2007) which is made Annexure-1A to the SCN. The said figures have been compiled on the basis of ER-I Returns filed by the appellant in respect of Unit-I situated at Ghaziabad and the figures for the year 2004-05 to 2007-08 have been compiled on the basis of sales bill submitted by the appellant. On the basis of weighment slips resumed from the factory of M/s Prakash Ispat - Annexure-A to the Panchnama, weighment slips resumed from M/s Jain Dharamkanta vide Panchnama dated 27/07/2007 and weighment slips ....
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....e said period 2003-04 to 2007-08 (up to 22/10/2007) without payment of Central Excise duty and the duty amounting to Rs. 2,68,12,628/- was leviable thereon. The final duty calculation is as follows:- Financial Year Value of Sales as per invoices/balance sheet of chart IA Quantity cleared as per weight slips in Kgs out of chart IB Value worked out for quantity in Column-3 out of Chart IC(value of 3) Total value of goods allegedly cleared (2+4) 1 2 3 4 5 2003-04 4796409 00 00 4796409 2004-05 5101201 59075 886125 5987326 2005-06 6430090 789490 21000434 27430524 2006-07 (upto Feb) 5216860 2553080 67911928 731288788 March, 2007 265530 4488865 11939809 122053339 2007-08 7777214 1446029 32453388 40230602 TOTAL 29587304 9336539 134191684 163778988 Accordingly, the appellants vide SCN dated 05/05/2008 were required to show cause as to why not the Central Excise duty amounting to Rs. 2,68,12,628/- including cess for the period 2003-04 to 2007-08 (up to 22/10/2007) be not demanded and recovered along with interest and further penalty was also proposed. Furt....
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.... Shri Rajendra Prasad Jaiswal on 09/02/2007 itself are not found entered in receipt register of the Department. In the statement recorded on 20/02/2007 of Shri Rajendra Prasad Jaiswal there is no reference to letters dated 09/02/2007. The veracity of the statement of Shri Rajendra Prasad Jaiswal, who was only a clerk in M/s Jain Dharamakanta, have not been verified from the owner of M/s Jain Dharamakanta. Even details of statement have not been corroborated with the accounts of M/s Jain Dharamakanta. In the statement dated 20/02/2007 of Shri Rajendra Prasad Jaiswal, wherever Prakash Ispat is written it was originally written as 'Prakash Metal' which has been corrected as 'Prakash Ispat'. There is no logic for writing AM Baki even after 10 years in 2007 (as the old unit of M/s Agarwal Metal converted to Prakash Ispat in 1927) after being taken over by the present appellants. The weighment slips are not reliable in view of several defects as noticed hereinabove. As per the Order-in-Original dated 30/04/2011, Shri Rajendra Prasad Jaiswal has been considered as dead, but not confirmed as dead. No effort have been made to verify his whereabouts and as to if actually died. Definitely, Sh....
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....city. Further, third-party statements and/or record/evidence is not reliable unless corroborated with tangible evidence. There being no collateral evidence brought on record by Revenue, the whole demand is bad and fit to be set aside. The demand of duty is based on the three Annexure marked as Annexure-1A, Annexure-1B & Annexure-1C, summary of chart mentioned hereinabove. There is no justification how value of goods recorded in column 4 has been arrived at out of quantity recorded in column 3. Computation of demand is imaginary and faulty in as much as demand has been worked out by treating the benefit of exemption under Notification No. 8/2003 to the two units as inadmissible as one/other unit at Ghaziabad was availing Cenvat while the appellant unit was availing nil duty exemption. The ld. Counsel states that there is no illegality in their Ghaziabad unit paying Central Excise duty and their Sikandrabad unit availing exemption of SSI. The said issue stands settled by Hon'ble Supreme Court in the case of Innovative Tech Pack reported at 2008 (224) E.L.T. 340 (SC). Accordingly, the learned Counsel prays for allowing the appeals by setting aside the impugned order. The lear....