TaxTMI 
TaxTMI 
2018 (10) TMI 634
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.... on the appellant company as well as co-appellants. 2. The facts of the case are that the appellant/M/s P.S. is engaged in the manufacture of Stainless Steel Pipes & Tubes who is registered with the central excise department having their head office at Hisar and also having their trading office at Motia Khan, Delhi. M/s P.S is also having their sister unit namely M/s Sheela Stainless Pvt. Ltd (in short M/s SSPL) having their office at Hisar and engaged in their trading of Iron & Steel Products and also having central excise registration as registered dealer. They are also having their sales office located at Motia Khan, Nabi Karim, New Delhi. The offices of the M/s P.S and M/s SSPL located in Delhi were not registered with the central excise department. The head office of M/s P.S and M/s SSPL is located in Hisar and the records of the both were maintained M/s P.S's office at Hisar. On 11.04.2013, a search was conducted at the premises to the M/s P.S and M/s SSPL. The factory of M/s P.S was found working. No variation in stock of inputs as well as finished goods were found in records of the stock maintained in the statutory records and no incriminating documents were recovered du....
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....per" & "Hisar Paper". It contains receipt of amount in cash or cheque on particular day. It also contains name of appellant and their buyer. The identity of the person mentioned therein could not be established as per department. It has been mentioned that evidences strongly suggest that amounts collected from persons/party were nothing but sale proceeds of appellant. As per folder "Daily Paper" amount of Rs. 9,74,60,825/- and as per folder "Hisar Paper" Rs. 71,52,650/- received. The duty of Rs. 95,95,013/- has been demanded (i.e. Rs. 89,49,777/- on receipt of cash under "Delhi Paper" and duty of Rs. 6,45,236/- on receipt of cash under "Hisar Paper". There is no quantity of impugned goods mentioned in the show cause notice. 5.1 There are 226 entries in "excelsheets" description in respect of which tally with invoices except gross value. It has been alleged undervaluation and duty of Rs. 28,13,716/- demanded. 6. It has been alleged that in follow up searches conducted on 20.06.2013 at the premises of M/s Vanita Hardware Store, Cuttak, M/s Balkishan & Sons, Gwalior and M/s Ravi Steels, Gwalior, it was found appellant had evaded duty on clandestine clearances from 11....
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....,999/- 3. Duty Evasion after 11.04.2013 to 20.06.2013-Details as per Annexure-'J'-Page 198 SCN 40.904 5,91,977/- 4. Receipt of cash amounts under Delhi Paper- Details as per Annexure -'H'-Page 187 SCN 89,49,777/- 5. Receipt of cash amounts under Hisar Paper- Details as per Annexure -'I'-Page 189 SCN 6,45,236/- 6. Undervaluation-Details as per Annexure -'C'-page-148 SCN 1277.207 28,13,716/- 7. Total 3822.934 4,72,73,240/- It is his submission that it has been held that the appellants cleared 1824.862 MT of Stainless Steel Pipe without payment of duty of Rs. 2,47,19,535/- against the 578 entries during the period 01.01.2012 to 09.04.2013 and the head office at Hisar was joint office of the M/s P.S and their sales office at Hisar and New Delhi of M/S SSPL. The Ld. Adjudicating authority erred in considering the entire data in excel sheets pertaining to clearance from the factory premises of M/s P.S. as it also contains the sales of other locations of M/s P.S. and also of M/s SSPL. Further, the adjudicating authority failed to appreciate that the excel sheets data not only pertains to clearances of M/s P.S. an....
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.... appellants had cleared goods to cover up of invoices simultaneously to convey their mistake they raised cenvatable goodless invoices of near equal quantity. To that effect, he submits that the adjudicating authority erred in holding that the excel sheets is in the name of "Delhi Office" retrieved from pen drive revealed that there are 198 entries in said excel sheets against which no invoice available in the records. Further, held that appellants against 198 entries during the period 01.01.2012 to 31.03.2012 cleared impugned goods weighing 679.961 MT, without payment of duty of Rs. 95,52,999/-. In fact, the adjudicating authority has failed to appreciate that in the 'Excelsheets' data, the entries are in the name of Vishalji, connotes that these orders were booked through Mr. Vishal Gupta and Shri Vishal Gupta in his statement dated 12.07.2013 categorically stated that his name mentioned in the folder named 'Delhi Office' as orders were booked by him and it was his responsibility to receive the payments thereto. The impugned order has not taken into account this fact and erred in concluding that since no invoice issued from the factory of the M/s P.S in the name of Mr. Vishal Gupt....
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.... and there is no allegation in the show cause notice that this amount was received on account of clandestine removal of goods or undervaluation in respect of clearances made by the appellants. The show cause notice does not alleges that the cash receipts are of clandestine removal of goods or undervaluation of goods in respect of the clearance made by the appellants. Therefore, the said demand is not sustainable. Further, the adjudicating authority failed to appreciate that Delhi Paper and Hisar Paper represents the trading clearances of appellant's trading unit and M/s SSPL's trading unit. There is nothing brought on records that goods against alleged cash receipts which were clandestinely removed by the M/s P.S. He further submits that there is no variation in stock of inputs and finished goods found during the course of visit and verification on 11.04.2013 and no incriminating documents were recovered during the search of appellant's factory. There is no allegation regarding illicit purchase of raw material how the goods manufactured and cleared has not been brought on record. The appellants were not having production capacity to manufacture goods as alleged in impugned order. ....
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.... to loose VAT credit @25% and for sale to SSPL Delhi they had to pay CST @2%, it prima-facie substantiate that the appellant had cleared goods alongwith invoices to their Delhi Location and to M/s SSPL, Delhi. This one hand negates the allegation that the 'Excelsheets' data is a record of dispatch of goods from the factory of the appellant and on the other hand corroborates the stand of the appellant that they cleared goods alongwith invoices. It is his submission that the appellants have issued goodless invoices to unregistered dealer who were not registered with the central excise department, therefore, the allegation of appellant issued goodless invoices to make available cenvat credit to consignee is misconceived, therefore, on the said amount, the demand is not sustainable. It is his submission that on one hand it is alleged some quantity of goods was removed clandestinely and on the other hand it is alleged that on a subsequent date a "goodless invoice" of almost the same weight was issued to the same party. It is his submission that the appellants have supplied goods and later on issued "goodless invoice" of the almost same quantity after a few days to same party. 5. With....
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....ain in the joint office of the appellant and data has been retrieved and on that basis, the case has been made out against the appellant. Section 36B of the Central Excise Act, 1944 deals with the situation of admissibility of documents and computer print outs as evidence. The Section 36B of CEA, 1944 is extracted herein below:- "Admissibility of micro films, facsimile copies of documents and computer print outs as documents and as evidence.- (1) Notwithstanding anything contained in any other law for the time being in force,- (a) a micro film of a document or the reproduction of the image or images embodied in such micro film (whether enlarged or not); or (b) a facsimile copy of a document; or (c) a statement contained in a document and included in a printed material produced by a computer (hereinafter referred to as a "computer print out"), if the conditions mentioned in sub-section (2) and the other provisions contained in this section are satisfied in relation to the statement and the computer in question, shall be deemed to be also a document for the purposes of this Act and the rules made thereunder and shall be admissible in any p....
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....this section, a certificate doing any of the following things, that is to say,- (a) identifying the document containing the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer; (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it. (5) For the purposes of this section,- (a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; ....
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.... how much labour was employed, how much a huge quantity can be manufactured. Moreover, there is no allegation of excess or shortage of raw material/finished goods at the time of search and no incriminating documents were recovered, in that circumstances, Revenue is required to prove their case as per the decision of this Tribunal in the case of Arya Fibers Pvt. Ltd. Vs. Commissioner of Central Excise, Ahmedabad-II 2014 (311) ELT 529 (Tri.-Ahmd.) wherein the paragraph 40 of the said order has observed as under:- "40. After having very carefully considered the law laid down by this Tribunal in the matter of clandestine manufacture and clearance, and the submissions made before us, it is clear that the law is well-settled that, in cases of clandestine manufacture and clearances, certain fundamental criteria have to be established by Revenue which mainly are the following : (i) There should be tangible evidence of clandestine manufacture and clearance and not merely inferences or unwarranted assumptions; (ii) Evidence in support thereof should be of : (a) raw materials, in excess of that contained as per the statutory records; (b) instances ....
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....statements. A co-ordinate Bench of this Tribunal has, in another decision, reported in the E.L.T. issue of 5-8-2013 (after hearings in the present appeals were concluded), once again reiterated the same principles, after considering the entire case-law on the subject [Hindustan Machines v. CCE [2013 (294) E.L.T. 43]. Members of Bench having hearing initially differed, the matter was referred to a third Member, who held that clandestine manufacture and clearances were not established by the Revenue. We are not going into it in detail, since the learned Counsels on either side may not have had the opportunity of examining the decision in the light of the facts of the present case. Suffice it to say that the said decision has also tabulated the entire case-law, including most of the decisions cited before us now, considered them, and come to the above conclusion. In yet another decision of a co-ordinate Bench of the Tribunal [Pan Parag India v. CCE, 2013 (291) E.L.T. 81], it has been held that the theory of preponderance of probability would be applicable only when there are strong evidences heading only to one and only one conclusion of clandestine activities. The said theory, cannot....