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2019 (4) TMI 931
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.... They were availing SSI exemption and were not registered with the Department. The premises of the appellant was inspected/searched on 24th July, 2012 including their office premises. The following premises were searched (i) office premises at Bartan Bazar Wali Gali (near Baba Jewellers), Subhash Nagar, Pukharayan (ii) Office premises at Jai Hanuman Chawal Udyog Pvt. Ltd., Byepass Road, Highway, Barhauli, Pukhrayan wherein the activity of the Rice Milling takes place and (iii) Factory premises of the appellant situated at By Pass Road High Way, Baholi, Pukhrayan. During the course of inquiry and scrutiny of GRs resumed from the appellant and re-conciling the same with the Transporter, M/s. Krishna Road Lines, the details contained in the freight register furnished by the Transporter were found tallying with the respective copies of the GRs resumed from the factory premises of the appellant, relating to the transportation of the goods. It further appeared that, as recorded in the show cause notice that the appellant received payment for their clearances, both by cheque and cash. Further, on scrutiny of the various records resumed and furnished by the appellant viz. loading slips, GR....
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....h penalty was raised vide show cause notice dt. 1.5.2015. 4. Both the show cause notices were adjudicated on contest by common order-in-original and the proposed demand was confirmed, as well as confiscation along with penalties. Penalty was also imposed under Rule 26 on the partner - Shri Bal Krishna Omer. 5. Being aggrieved, the appellant had filed appeal before the Commissioner (Appeals), who vide the impugned order-in-appeal confirmed the demand and penalty on the appellant firm but was pleased to set aside the penalty imposed on the partner, Shri - Bal Krishna Omer. 6. Being aggrieved, the appellant is before this Tribunal. The following evidences /RUD have been relied upon, in the impugned order. List of relied upon documents 1. Panchnama dated 24.07.2012 drawn at the premises of M/s Jai Hanuman Chawal Udyog (P) Ltd., Pukhrayan (Total 04 pages); 2. Statement of Shri Bal Krishna Omer, Partner of M/s Jai Hanuman Rice Industries, Pukhrayan recorded on 24.07.2012 (Total 03 pages); 3. Panchnama dated 24.07.2012 drawn at the office premises of M/s Jai Hanuman Rice Industries situated at Bartan Bazar Wali gali, Pukhrayan (Total 04 pages); 4. Statements of ....
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.... Jai Hanuman Rice Industies, Pukhrayan for the period from 01.11.2009 to 31.07.2012 (Total 32 pages); 20. Statement dated 21.03.2013 of Shri Bal Krishna Omer, Partner of the party's firm (03 pages); 21. Statement dated 07.10.2013 of Shri Bal Krishna Omer, Partner of the party's firm (03 pages); 22. Details of sales as per resumed loading slips:- Annexure-A(i) - Total 12 pages, Annexure-A(ii) (a) - Total 29 pages; Annexure A(ii) (b) - Total 02 pages; Annexure-A(iii) -Total 12 pages. 23. Details of sales as per invoices/challans for which no loading slips found:- Annexure-B(i) - Total 05 pages, Annexure-B(ii)(a) - Total 06 pages, Annexure-B(ii) (b) -Total 03 pages, Annexure-B(iii) (a) -Total 02 pages, Annexure-B (III)(b) -Only 01 pages, Annexure-B (iv) - Total 02 pages. 24. Details sales as per invoices for which loading slips found:- Annexure-C(i) -Total 02 pages, Annexure-C(ii)(a) -Total 06 pages, Annexure-C(ii) (b) -Only 01 pages, Annexure-C(iii) -Total 02 pages, 25. Details of total sales as per all the invoices resumed:- Annexur....
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....2012 with Central Excise Division-II, Kanpur 7. Heard both the learned Advocates Shri S. K. Pandey appearing on behalf of the appellant and the learned DR Shri Rajeev Ranjan, Additional Commissioner, for Revenue. 8. As regards to order of confiscation of finished goods valued at Rs. 37,98,636/-, it is noticed that the same were seized for want of production of finished goods records, despite the admitted fact that the said records were under resumption by the search team. On perusal and comparing the physical balance of finished goods stocks with the recorded balances in the resumed manually prepared and also soft copies of stocks registers, we do not find any variation. This fact is also discernible from the following table: Sl. No. Description of goods Qty. found as per physical verification found by the officers (in cartons) Qty. As per record (manual stock register/ soft copy of stock register in CPU) (in cartons) Difference (Col. 3-4) 1 2 3 4 5 1 250 No. PP Glass 1901 1901 Nil 2 300 No. PP Glass 190 190 Nil 3 130 No. PP Glass 640 640 Nil 4 100 No. PP Glass 510 510 Nil 5 80 No.....
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....ible for SSI exemption till the date of search. Under the circumstances, we further hold that, the appellant were not required to discharge duty. 11. We also agree to the contention of learned Advocate of the appellant that in view of the decisions in the case of Gujarat Agro Chem Ltd. vs. CCE, Surat [2012 (280) ELT 435 (Tri. Ahmd.) and Dodsal Pvt. Ltd. vs. CCE {2006 (193) ELT 518] that the debit of duty and statements at the time of visit of Revenue Officer, without there being corroborative evidence to reflect upon the clandestine removal, is not sufficient for holding against the assessee. Therefore, the pre-deposit of Rs. 20 lakhs by the appellant was inconsequential to establish case as alleged against them, under the facts and circumstances of the case. 12.0 The next issue for consideration is of rejection of the request of Cross-examination on the ground that the appellant's request appeared more like a ploy to protract the proceedings and is nothing but a dilatory tactic, by making sweeping observations that the documents clearly proved the case of the department; holding that the cross examination is not a mandatory procedure, and its denial does not amount to violat....
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....[2010 (260) ELT 514 (Alld.) have held- "Evidence -Cross-examination - Revenue if chooses not to examine any witnesses in adjudication, their statements are not considerable as evidence - Statements if relied, then persons whose statements relied upon have to be made available for cross-examination for evidence to be considered. 12.4 We are, therefore, constrained to hold that the impugned order denying request for cross-examination, is clearly in violation of principles of natural justice and as a consequence, the relied upon statements and the records referred therein have to be eschewed from the proceedings. 13. Coming to the other issue of interrogation/ cross-examination of the known authors of Sale Enquiry/ Loading slips and the Sale registers, Ledgers, Cash Book, Bank Book documents, namely S/Shri Ramchandra and Umang Kumar, both employees of the appellant. The learned Advocate pointed out that Shri Umang Kumar had voluntarily made determinative disclosure through written communication dated 11.10.2013, addressed to the Investigator / Supdt. With a copy to the appellant (Annexure -9/ Page 356-357 of appeal paper book), inter-alia, explaining the entire matter relatin....
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....he confirmation of demand. The findings are based on the conception that there was evidence of out of books/ unaccounted purchases of raw material and clandestine manufacture. Besides that the details recorded in all the resumed Loading/ Enquiry Slips and manually prepared Sale registers and ledgers, authored by one Shri Ramchandra and Shri Umang Kumar respectively represented actual, and that the copies of some GR's which have no origin and a Freight Register obtained from Shri Nirmaljeet Singh under his statement recorded on 22.01.2013, further supports the clandestine clearances, The Court below have also drawn support from the retracted statements of Shri Bal Krishna Omer, Partner of the appellant, to claim that all the Loading/ Enquiry Slips were prepared for sale and the sale values shown in the loading slips and ledger were correct. 15. The learned Advocate, countering the findings, demonstrated that the actual sales are represented by invoices only and that the Enquiry/ Loading Slips are unconfirmed offer to sale / purchase. That only few of those Loading/ Enquiry Slips are transformed into potential sales, which after negotiation between the buyers and the Partner of th....
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....ad conducted verification at the end of buyers through the annual reconciliation of accounts, with most of them, including the aforesaid seven buyers. The reconciliation of accounts did not reveal any discrepancy, thereby demolishing the authenticity and reliance of the Loading/ Enquiry Slips as document of clearance of goods. 20. We also agree with the contention of the learned Advocate that the Enquiry/ Loading Slips being order booking documents cannot form basis of confirmation of demand. The finished product of appellant, being manufactured by several persons, there is cut throat competition in the market. 21. We have also glanced through letter dated 11.10.2013 of Shri Umang Kumar, (to the Supdt. (Prev.), to notice his reasoned denial of linkage of entries in sale register and party ledgers with the appellant's activities (page 356-357 of the appeal paper book). We also notice that the entries in party ledgers, are all supported by backup documents like resumed cash book etc. in as much as the entries of receipt of cash as reflected in the Cash Book, did not tally with those shown in the party ledger. 22. In light of the aforesaid facts on records and the circumstanc....
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....order. We having decided against the credibility of Sale Enquiry/ loading slips, sale register and party ledgers, the statement of Sh. Bal Krishna Omar, Partner of the appellant is inconsequential. That even otherwise mere reliance on incredible Sale Enquiry/ loading slips sale register and party ledgers or statements, cannot justify a finding of clandestine manufacture and/ or clearance. 26. After considering the documents referred by the learned Advocate and submissions made by him we are of the considered view that under the facts and circumstances the said documents adduced by the Revenue are not credible and inadmissible as evidence to substantiate the charges of clandestine manufacture and removal. 27. Learned Advocate further urged that the charge of clandestine removal is required to be proved beyond doubt by the revenue and that entries in private records at the most, may raise a doubt, but that cannot take the place of proof. In support reliance was placed on decisions in the case of Sharma Chemicals v. CCE, Kolkatta-II [2001 (130) ELT 271 (T) and CCE Trichy vs. Ravishanker Industries -2002 (150) ELT 1317 (Tri.). 28. We further find that the Revenue have failed t....