TaxTMI 
TaxTMI 
2019 (4) TMI 726
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....xcise Department and also availing Cenvat Credit on inputs in terms of Cenvat Credit Rules, 2004, (herein after referred as Credit Rules) other two appellants, namely, Shri Aradhya Baheti, is Executive Director of the appellant company and Shri P G Purohit, is President of the appellant company arrayed as notice No. 2 and 3 in the Show Cause Notice. 3. Officers of DGCEI received intelligence that the appellant assessee were evading the payment of appropriate Central Excise duty by undervalue their finished products in their excise invoices for sales made to customers at Ahmedabad and Jodhpur. They were receiving invoice amount through cheques and amount over and above the invoice value, in cash, through their commission agent, at Ahmedabad and Jodhpur. The officer conducted searches on 24/01/13 at various premises related to the appellants, their commission agents and also some of the transporter, who use to transport excisable goods and recovered incriminating documents for further investigations. They also down loaded data from the computers installed in the factory premises of the appellant. (i) DGCEI officer also recorded the statement of Shri Rajesh Dubey, Sr. Manager (State....
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....the CBEC Circular No. 975/9/2013-CX dated 25.11.2013 which stated that every transaction is to be assessed independently under the provisions of Section 4 of the Central Excise Act, 1944 (for short 'Central Excise Act') (iii) Ld. Advocate further submits that since the duty involved in these cases stands paid as per their calculation no penalty is imposable on the appellant. Further, the Director and the President of the company, who were appellants No. 2 and 3, the penalty is not imposable under Section 26 of the Central Excise Rules, 2002 (for short 'Excise Rules') As a subject goods are not held liable for confiscation, as there was no proposal in the Show Cause Notice to that effect. For this reliance was placed on the following case laws; (i) CCE vs. Ramesh Kumar Rajendra Kumar[2015 (325) ELT 506 (Bom)] (ii) Steel Tubes of India Ltd. vs CCE Indore [2007 (325) ELT 506 (Tri- LB)] (iii) Jayantilal Thakkar vs UOI {2006(195) ELT 9(Bom.)] (iv) Rakesh Kumar Garg vs Commissioner of Central Excise [2016 (331) ELT 321(Del)] In view of above Ld. Advocate submits that the impugned order is not sustainable and liable to be set aside. 4. Ld. AR supports the impugned order, and submi....
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....e on the following case laws; (a) The hon'ble CESTAT in case of JAY JALARAM PROCESSORS versus COMMISSIONER OF CENTRAL EXCISE, SURAT, 2014 (313) ELT 724 (T) held that:- 7. It has to be kept in mind that the clearance were affected by the appellant without payment of any duty and the. I is not a simplifier case of non-payment of duty, in which case the entire realization has to be treated as cum duty price where the duty is being subsequently confirmed against an assessee. It is the case of clandestine removal and the Revenue, while adopting the value of fabrics, has not adopted the cum duty value but has adopted the value at which the finished fabrics were cleared without including the factor of duty. As such, I find no merit in the contention of the learned advocate that the duty is required to be re-quantified.: (b) The Hon'ble CESTAT in the case of ASIAN ALLOYS LIMITED versus COMMISSIONER OF CENTRAL EXCISE, DELHI-III, 2006 (203) ELT 252 (Tri-Del.) distinguished the judgment of the Hon'ble Apex Court in the case of Maruti Udyog, if the goods were removed clandestinely as in the present case. The Hon'ble CESTAT held that: "18.1 In the present case, all the sales to the DTA were....
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....ant that they have only resorted to undervaluation of sale to the unorganized sector. But for the organised sector, they have not resorted to undervaluation of their product and cleared the goods at the invoice price only on which Central Excise Duty stands paid. No additional consideration has been recovered by way of cash in these cases. But the Department has procured the invoices of M/s Mehta Alloys, Abhinav Steels, M/s Sunrise Enterprises etc., which indicates that the assertion made by the appellant under invoicing is resorted to unorganized sector only is not sustainable. We are convinced that in those cases also , the appellant would have recovered excess amount than invoiced amount to defraud state exchequer by less payment of Central Excise Duty. It appear to us unacceptable that the cases of sale at Jodhpur and same sale at Ahmedabad, where the Department has recovered the evidences there was under invoicing but for other no under invoicing would have been resorted to. We find that this aspect has been dealt by Ld. Adjudicating Authority in the case of Collector of Customs, Madras and Ors. vs D Bhoormull Civil Appeal No. 1142 of 1973, at para 32 of the adjudication order....