AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2019 (1) TMI 245
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....s/CPU/Hard Disk/CD and also recorded the statement of Shri Vikas Bansal - Staff/Relative under Section 14 of the Central Excise Act. The department also searched the factory premises located at Khasra No.77/08/02/09, Ghevora Village near Mundka, Rohtak Road, Delhi where they found one electricity connection of approx.60 KWA bearing electric meter S.No.27128707, one generator set having capacity of 80 KVA installed in the premises, raw material i.e. copper scrap, two oil furnaces, out of which one oil furnace of 4 MT was installed and operational and other was lying un-installed. The officers further found some construction work/repairing work was going on and 4-5 labourers were working near the furnace under installation. Shri Pawan Kumar - Gatekeeper informed that no manufacturing activities were being carried out at the premises since some repairing work was being carried out for last 3-4 days. He also informed that 10 workers were being normally deployed for the job or factory work, in two shifts of 12 hours each. During the course of search, Shri Dinesh Kumar, Supervisor joined the search proceedings. The officers have recorded statement of Shri Dinesh Kumar, Supervisor on the ....
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....phew of Sanjay Goyal) on various dates. Based on the documents recovered & statements recorded, a show cause notice dated 9.5.2013 was issued to the appellant - M/s. Rama Industries proposing to levy duty of Rs. 6,09,96,299/- along with interest & penalty. Further, penalty under Rule 26 has been proposed on Shri Vijay Goyal & Shri Dinesh Goyal. The appellants denied all allegations made in the show cause notice. However, the ld. Commissioner vide its impugned order confirmed the central excise duty of Rs. 6,09,96,299/- along with interest & equivalent penalty and further imposed penalty of Rs. 10 lakhs each on Shri Vijay Goyal and Shri Dinesh Goyal. 5. The appellants being aggrieved are before this Tribunal against the said order. 6. The learned Counsel for the appellants submitted that the ld. Commissioner has not taken into consideration various submissions made by the appellant, which are as follows:- 6.1. That the appellant was only trading in scrap of different kinds purchased from various scrap dealers after segregating it into different types like plastic, iron, copper etc.. The appellant purchased. & installed an old crucible- furnace from a scrap dealer. All the documen....
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.... gatekeeper, no manufacturing activity was being carried out at the premises for the last 3-4 days and ten workers were usually deployed for the job. Thus even as per the panchnama, ten workers were deployed for repair work and not in the manufacturing activity. He also informed the officers that the factory works in two shifts of 12 hours each. However, at the time of search, the officers did not find any evidence whatsoever to this effect. 6.11. That the scrap was being purchased from Kabaris for which no bills were raised by the Kabaris. 6.12. That the statement of Sh. Dinesh Kumar, Supervisor is not reliable being false, as is borne out by its contents. He has stated that Sh. Vijay Kumar Goyal is the proprietor of the firm, however the proprietor of the firm is Sh. Sanjay Goyal. Though he has stated that raw material was being purchased from local traders, however no such local traders have been named by him. He has stated that the ingots are supplied by trucks in the night however no transporters have been identified by the Department and no goods have been seized by the Department during the course of their alleged transport without cover of Central Excise invoices. 6.13 T....
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.... all his through the interim reply dated 16.01.2014. In the case of CCE, Delhi-I Vs. Vishnu & Co. Pvt. Ltd., 2016 (332) ELT 793 (Del.) it has been held that even if the statement is retracted after a period of time, it is no longer safe to rely upon it as a substantive piece of evidence. 6.19. That the relied upon statements are also not corroborated by any material evidence hence no reliance can be placed on them as held in :- -Golden Steel Corpn. Ltd. Vs. CCE, Kolkatta-II 2017 (347) ELT 570 (Trib. Cal.) -Continental Cement Co. Vs. UOI 2014 (309) ELT 411 (All.) -CCE Vs. Renny Steel Castings (P) Ltd. 2013 (288) ELT 45 (P&H) -Suntrek Aluminium (P) Ltd. Vs. CCE 2013 (288) ELT 500 (Guj.) -CCE Vs. Aggarwal (Plastic) India 2007 (8) ELT 95 (CESTAT 6.20. That it is alleged that as per the resumed records, the appellant has procured 170303.5 kg (approx.) of scrap during the period Jan'2012 to March '2012 out of which 161788.32 kgs of copper ingots were allegedly manufactured by taking the ratio of copper scrap to ingots as 100:95. It is well settled that demand on the basis of any standard input-output ratio is not sustainable as held in inter alia, the following judgments ....
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....group 2011. This chart shows sale of copper ingots during the period July '2012 to Sept '2012. Without prejudice to the appellant's contention that no reliance can be placed on the said spiral note book, it is submitted that the department has neither led any evidence to show procurement of unaccounted copper scrap during this period nor co-related the alleged sale with the production capacity of the appellant. In the absence of this evidence, the allegation that the appellant has manufactured and cleared copper ingots clandestinely is not sustainable. 6.25 That demand of duty on the basis of assumptions and presumptions is not sustainable as has been held in, inter alia, the following cases : -Cera Boards & Doors Vs. CCE 2010 (249) ELT 550 (CESTAT) -U.P. State Sugar Corpn. Vs. CCE 2000 (117) ELT 83 (CESTAT) -Dulichand Silk Mills (P) Ltd. Vs. CCE 2001 (133) ELT 468 (CESTAT 6.26. That the valuation of the alleged quantity of copper ingots manufactured by the appellant has been done on the basis of invoice of M/s. Mohit Rollers (P) Ltd. (third party). However these are for copper wire rods whereas the appellant has allegedly manufactured copper ingots. The impugned order....
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....ELT 45 (P&H) -Suntrek Aluminium Pvt. Ltd. Vs. CCE 2013 (288) ELT 500 (Guj.) -Kuber Tobacco Products Ltd. Vs. CCE 2013 (290) ELT 545 (Tribunal) -Popular Iron & Steel Co. Vs. CCE 2013 (291) ELT 542 (Tribunal) 7. The learned AR appearing for the Revenue submitted that the ld. Commissioner has passed a very reasoned order and rightly held that the appellant have indulged in clandestine removal of goods. The ld. AR has relied upon the decision of this Tribunal in the case of CCE, Delhi-I Vs. Praveen Kumar & Company - 2015 (328) ELT 220 (Tribunal-Delhi), H.R. Siddique Vs. Director, Enforcement Directorate - 2015 (318) ELT 182 (Delhi) & S.N. Ojha Vs. Commissioner of Customs - 2016 (331) ELT 33 (Delhi) to support his plea, that if a statement is retracted about after 2 years, without any basis, then the said retraction has no legs to stand, and if any retraction is belatedly made, then the burden is on the person to show that the statements have been recorded under threat or coercion. He further submitted, there are enough evidence on record to establish clandestine removal of goods. Therefore, prays for rejection of appeals. 8. Considered the rival contention & perused the record....