TaxTMI 
TaxTMI 
2019 (4) TMI 1680
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....i Sandeep Kumar Garg (partner), Satya Kraft Pvt Ltd, Shri Deepak Maheshwari (proprietor), Shri Mahendra Khanna (proprietor), Aakar Traders, Shri Istkar (proprietor), Neeraj Paper Marketing Ltd, Nishant Garg, Ravinder Kumar, Shri Anil Kumar Sharma (proprietor), Shri Harish Kumar Singhal (director), Shri Raghuvansh Kumar Agarwal, Shree Jaiveer Singh (proprietor), Shri Rajiv Jain (director), Nav Durga Kraft & Tissues Pvt Ltd, Vanik Papers Pvt Ltd, Shri Dalip Khanna (proprietor), Aslam Tyagi, Shri Praveen Bansal (proprietor) Versus C.C.E. & S.T.-Meerut-I (In All Appeals) Ms. Seema Jain, Advocate, Shri Ajay Kumar, Advocate And Shri Abhishek Srivastava, Advocate for the Appellant Shri Sandeep Kumar Singh, Deputy Commissioner (AR), for the Respondent ORDER Per: Mrs. Archana Wadhwa. All the appeals are being disposed of by a common order as they arise out of the same impugned order passed by the Commissioner vide which he has confirmed the demand of duty of Rs. 8.96 Crores approx. against M/s.Meenu Paper Mills Pvt.Ltd. on the allegations and findings of clandestine removal along with confirmation of interest. In addition penalty of identical amount stand imposed upon them. F....
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....ses were scrutinized by the Revenue and the data contained in the hard-discs, and and Pendrive was retrieved and examined. From the said data, Revenue entertained a view that the same was related to sale and purchase by M/s.Meenu Paper Mills, which has been cleared clandestinely by the said manufacturer. Statements of various persons were recorded. Shri Ravinder Kumar, Accountant-Cum-Computer Operator of the assessee informed that the data stand stored in the name of M 14-15. He clarified that M meant M/s.Meenu Paper Mills in coded form and 14-15 referred to financial year 2014-15. He also deposed that the said data pertains to both accounted as well as unaccounted sale. Similarly the Pen-drive recovered from the residential premises of the Director Shri Manish Kapoor were examined and data was retrieved from therein, leading the Revenue to believe that the same represents the un-accounted sale purchase by M/s.Meenu Paper Mills. 7. During the course of further investigations, statements of various persons were recorded including the scrutiny of the documents of the transport companies, who under-took the transportation of the final product of M/s.Meenu Paper Mills. On comparison....
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....not find favour with the above submissions of the appellant and vide his impugned order dated 16.01.2018 confirmed the demands, as proposed in the notice along with confirmation of interest, without accepting the assessee's plea of cross-examination and supply of Pendrive etc. allegedly recovered from the premise of the Director of the company as also from other sources. He also imposed penalties of varying amounts on the other co-noticees who were either the alleged supplier of the raw material or the purchaser of the clandestinely cleared goods. The said order is impugned before us. 11. Ms.Seema Jain, learned Advocate appearing for M/s.Meenu Paper Mills Pvt.Ltd. as also for other appellants has assailed the impugned order on number of grounds. After detailing the factual position she submits that the entire case of the Revenue is based upon the seizure of Pendrive, laptop, hard discs, server etc. either from the residential premises of Shri Manish Kapoor, Director of the said company or from the residential premises of the various employees and the statements recorded during the further investigations. She clarifies that the search and seizure conducted by the Revenue officers....
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.... she has shown the other persons to be the witnesses at different places and on different dates. It is the contention of the learned Advocate that the fact that no person who was inhabitant of the locality where the search was to take place stands summoned for being a witness to the proceedings. On the contrary Revenue has used their own witnesses for conducting the searches and consequent seizures. This fact itself establishes a motive on the part of the Revenue and there is no explanation as to why a local inhabitant was not called for to be a witness to the proceedings. It is not the Revenue's case that some local inhabitants were called and they refused to participate. She submits that when the search itself was not in accordance with the provisions of law, the seizure is vitiated and seized records are not admissible evidence. For the above proposition she relied upon the following case laws..:- (a) Yeduru Sreeniasulu Reddy vs. The State of Andhra Pradesh [Manu/AP/1238/2001] (b) Pradeep Narayan Madgonkar & Ors vs. State of Maharashtra [MANU/SC/0372/1995] (c) State vs. Om Prakash and Ors. [MANU/DE/3584/2013] (d) Prem lata vs. State of Himachal Pradesh [MANU/HP/0116/....
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....ffarnagar Laptop Model Dell Vostro 15, Service Tag (S/N) DZXT712; Express Service Code 30471275990. Laptop Model Lenovo S/N EB07140729; P/N R3NO37B23014 2 pen drives (red and yellow) Both laptops sealed with paper seal with signature of officers and party. Pendrives kept in envelope and duly signed by officers and party 23.4.2015 in the residential premises of Deepak Maheshwari at Pitampura Delhi One hard disc of and Seagate 320 GB S No.9VMFYQ3F Seven Pen drives Pen drives put in individual sealed envelopes and further sealed with paper seal Two pendrives opened on 27.4.2015 Five pendrives opened on 1.5.2015 23.4.2015 in the premises of Shikar Paper, Lawrence Road, Delhi One Black computer of Dell brand Reg Model No. W01B Reg Type W01B001 One "Busy" accounting software dongle S No 08110025 Computer was sealed with paper seal (ii) Printouts from the seized unsealed pendrives was not taken out at the time of seizure in the Appellant's premises, but later in the O/O Chief Commissioner at Noida using the computer installed there. Section 36(B) (2) prescribes following conditions for admissibility of a computer print out 36(B)(2)(a) ....
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....r the settled law when a print out from a computer is relied upon, then a certificate as prescribed has to be taken. No certificate was taken as prescribed although the persons from whom the certificate was to be taken were available. The certificate is mandatory and print out cannot be relied upon in its absence. Reliance is placed on the following decisions:- Anvar P.V. vs P.K.Basheer 2017 (352) ELT 416 (SC) Super Fashion Fasteners Pvt.Ltd. vs. Pr Commr C.Ex Meerut-1 2018 (363) ELT 952 S N Agrotech vs. C. Cus, New Delhi 2018 (361) ELT 761 Shafi Mohammad vs State of Himachal Pradesh MANU/SC/0058/2018 Premier instruments & Controls Ltd. vs CCE Coimbatore 2005(183)ELT 65 (iv) No evidence that the pen drives that were opened to retrieve data were the same as the pen drive that were seized. The Panchnama merely states the name of the manufacturer of the pen drive, and the memory of the pen drive. Pen drives of same manufacturer and the memory are easily available in the market. Just like computer and laptop, pen drives also have a unique number for identification. The number on the seized laptops and hard disk has been recorded in the Panchnama but the product cod....
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....appellant initially had a capacity of 5000 MT per annum which was increased to 15000 MT in 2009. This is evident from the letter dt 28.10.2009 of the Department to the Appellant and the Appellants Reply dt.4.11.2009. The issue of Cenvat Credit on inputs at the time of enhancement of installed capacity was before CESTAT, Allahabad wherein the Department had admitted the fact that M/s.Meenu Paper has enhanced their capacity from 5000 MT to 15000 MT. 2016 (344) ELT 894 The expansion of capacity from 15000 MT to 21000 MT was intimated to the Department vide Letter dt 8/7/2015 which is after the period in dispute The Production capacity of the factory was 15000 MT per Annum in the period in dispute. As per the SCN, Appellant manufactured more than twice its production capacity which is not possible. (vii) Nothing incriminatory found in the laptops resumed from the residence of Shri Manish Kapoor, Director Meenu Paper Mills and from the laptop seized from residence of Shri Ravinder Kumar or from the factory premises of Appellant. There is no trace of the data in any electronic device seized from premises of Director, Manish Kapoor and Ravinder Kumar.. The two pendrives are th....
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....udge in the factory of the Appellant. The offices visited the factory on 2.12.2014 and stayed in the factory for 12 hours from 8:25 am to 8:25 pm, but did not ascertain the process of manufacture or undertake stocktaking of raw materials/fuels. The officers again visited the premises of Appellant on 15.02.2016, and they could have seen whether the kraft paper manufactured by the Appellant could be manufactured from the sludge. However, they did not do so. There is no evidence on record to prove that slugde can be used for manufacture of Kraft paper.. The Appellant was visited by the Income Tax Authority on 29.12.2012 wherein the survey diary of the Commercial Tax Department has the report of Shri Anil Sharma, waste paper reporter which furnished an inventory of the raw materials, fuel and chemicals. Stock of 60MT of waste sludge was inventorised as fuel and has recorded to be kept near the boiler. This proves that sludge is actually used for fuel and not as a raw material. If sludge is not used as fuel, then there is no investigation as to what was used as fuel in its place. The Appellant in its Income Tax Returns has shown the waste sludge used as fuel, the other items us....
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....quest for cross-examination was not considered by the adjudicating authority and thus is in violation of the provisions of section 9(D) of the Central Excise Act. The same has no evidentiary value and cannot be relied upon by the department as held in the following cases:- CCE, Meerut-1 vs Parmarth Iron Pvt Ltd 2010 (260) ELT 514 (All) J K Cigarettes Ltd vs CCE 2011 (22) STR 225 (Del) Jindal Drugs Pvt Ltd vs UOI 2016(340) ELT 67 (P & H) Ambika International vs UOI 2018 (361) ELT 90 (P& H) Hi Tech Abrasives Ltd vs CCE & Cus Raipur 2018 (362) ELT 961 (Chattisgath) 14. Similarly she submits that the adjudicating authority denied the appellant request to provide soft copies of Pendrive on the ground that print outs have been supplied as relied upon documents. She submits that documents/data relied upon has to be supplied in full and it is not the prerogative of the Revenue to select the intermittent data, which is in violation of principles of natural justice. She also submits that the Director as also many of the employees of the appellant company retracted their statements and filed the following chart on record, which is being reproduced for ready reference:- Di....
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....ed. Statement recorded when in custody of the Department cannot be relied upon without corroborative evidence. Manish Kapoor did not admit that the data of 2010-11 to 2013-14. Nishant Garg, Excise Asst. In his statement dt 20.03.2015 stated that he was in charge of making invoices and dispatching the goods. On being shown the transport bilties in a folder resumed from residence of Ravinder Kumar he stated that the bilities are of transportation of goods of Meenu Paper. On being asked about the transporters, he stated that he had no knowledge and that all bilties are fake, that for transportation of craft paper they hired vehicles from the market and used fake GRs of the transporters. Retracted his statement on 21.3.2015. Retracted statement cannot be relied upon The transport documents seized from residence of Ravinder Kumar have not been endorsed by Nishant Garg, Excise Assistant and have not been corroborated. Aslam Tyagi in his statement dt 20.03.2015was statement of Ravinder Kumar, Manish Kapoor and Nishant Garg and he signed the same in agreement . Aslam Tyagi retracted his statement on 21.3.2015. Retracted statement cannot be used as corroborativ....
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....esumed from Manish Kapoor as well as his statements. He stated that the ledger account of M/s Meenu Paper shows sale to Meenu Paper in the name of Deepak Maheshwari. He stated that he agreed with the statement of Deepak Maheshwari. In his statement dt 06.05.2015 he agreed with the statement of Deepak Maheshwari that there was under valuation of goods. In his statement dt 07.05.2015 he agreed with the statement dated 07.05.2015 of Deepak Maheshwari. Three statements of Jaiveer Singh, all in Hindi, all three statements are in three different handwritings. Signatures are also different. Cannot be relied upon Not reliable (Pages 161-167) Statement of Arshad Ali Khan, Proprietor Jai Bharat Trading dt 08.06.2015 wherein he stated that he is engaged in selling Road sweep (Mill Borad) to Appellant. On being shown the data from pendrive, he admitted that the data in the name of Arshad Waste paper and Arshad (WP) Temp was that of his firm. The data in the name of Arshad is for waste paper, not Mill Borad. Mill borad is used for burning in furnace. Statement of Arshad Ali Khan cannot be relied upon. Statement of Pradeep Kumar Jindal, Proprietor M/s Aastha Tra....
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....Statement written by another person without assigning reason not admissible Similarly statement of only 17 buyers, commission agents stand recorded out of huge number of such buyers mentioned in the Pendrive and penalty of Rs. 1.00 lakh has been imposed only on 6 out of 17 buyers. Non-proceedings of the Revenue against the balance 100 of buyers only indicate that the data was not proper and the Revenue itself doubted the correctness of the same. 15. Learned Advocate further submits that the allegations of clandestine removal are serious allegations and are required to be proved by production of positive and sufficient evidences. No evidence of cash transaction found All the buyers who were investigated produced their ledgers reflecting their purchase of Kraft paper from the Appellant. On being shown the print out of the data, statements of Manish Kapoor and Ravinder Kumar, they agreed that they had made unaccounted purchases from Appellant and made payment in cash. No cash was found in the Appellant's premises, residence of the Director or residence of the accountant. Most transporters whose bilties were found in the premises of Ravinder Kumar were non-existent. Ther....
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....of Jagdish Shankar Trivedi v. Commissioner of Customs, Kanpur reported as 206 (194) E.L.T. 290 (Tri.-Del.)]. It stands held in the said decision that admission made by an assessee binds him and therefore failure to give him the opportunity to cross-examine the witnesses was not violative of the principals of natural justice. It was specifically held that "principals of natural justice do not require that in matters like this, persons who had given information should be allowed to be cross-examined by the co-noticees on the statements made before the Customs authorities". If cross-examination is to be allowed as a matter of right then in all cases of conspiracy and joint dealings between the co-noticees in the commission of the offence in connection with the contraband goods, they can bring about a situation of failure of natural justice by joint strategic efforts of such co-noticees by each one refusing to be cross-examined. As such submits the learned A.R. that adjudicating authority has rightly concluded that the appellant has asked for the cross-examination of various witnesses in a routine way, without giving any cogent reasons and hence in view of the above, cross-examination ....
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....rded during the course of investigations. The Revenue, based upon the said evidences has alleged that whereas during the period from 2010-11 to 2014-15, the appellants have shown removal of their final products as per their ER-1 returns as 47,265 MT, the actual removal as per Pendrive is to the extent of Rs. 108491 MT. As such it stands concluded that they have clandestinely removed their final product to the extent of 61476 MT involving duty of Rs. 8,96,88,272/-. 20. First of all we deal with the appellant's contention of search and seizure not being in accordance with the provisions of the Central Excise Act. Learned Advocate has referred to Section 12F as also Section 18 of the Central Excise Act, 1944 which are as under:- SECTION 12F. Power of Search and seizure. - (1) Where the Joint Commissioner of Central Excise or Additional Commissioner of Central Excise or such other Central Excise Officer as may be notified by the Board has reasons to believe that any goods liable to confiscation or any documents or books or things, which in his opinion shall be useful for or relevant to any proceedings under this Act, are secreted in any place, he may authorize in writing an....
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....hipal Singh and resident of House No.191, Gitanjali Vihar, Khoda Colony, Ghaziabad stand invited to be a witness in the search of residential premises of Shri Manish Kapoor, Director, at Bhopa Road, Muzaffarnagar, conducted on 02.12.2014. The same Shri Rinku Singh is witness in the search conducted on 23.04.2015 to M/s.Shikar Paper, which is located at B-4/7A, Kesabpuram, Delhi. Further same Shri Rinku Singh has been shown as an witness on 15.02.2016 in the office of the Assistant Commissioner, CIU, Meerut Zone, Central Excise Division-II Muzaffarnagar. We really fail to understand as to how same Shri Rinku Singh, who is a resident of Khoda Colony Ghaziabad was called upon by the Revenue to be a witness in the searches on 02.12.2014, 23.04.2015 and 15.02.2016 at three different places. It is not only that the said person was made a witness at three different places on three different dates, the same is the case in respect of other searches conducted by the Revenue. One Shri Chouhan, son of Shri Satyapal Singh, Vill. Sikhera, P.O. Khas, Meerut was made witness to the search proceedings conducted on 02.12.2014, 24.04.2015, 01.05.2015 and 06.05.2015 in the office of the Chief Commi....
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....arch so as to be joined as Panch witnesses. The very fact that those witnesses were joined in the raids, creates a doubt about the fairness of the investigation. 22. By applying the ratio of the above decision to the facts of the present case, we note that not only the witnesses were not from the locality, but as discussed, the same witnesses were used on different dates at different places. There is no explanation given by the Revenue on the aspect as to why the same very witness (not only one, but number of them were used as witnesses repeatedly) were associated in different raids at different places and on different dates & timings. This fact admittedly leads to the doubts about the fairness of the searches and the consequent seizures made by the Revenue. Such non-observance of procedure and repeated calling of the same very witnesses is fatal to the prosecution case and casts serious doubt against the Revenue. 23. In any case and in any view of the matter we also note that the demand is primarily based on 16 GB Sandisk make Pendrive seized from the residence of Shri Manish Kapoor, Director of the unit as also one Sony Pendrive 4 GB seized from the residence of Shri Ravind....
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....It is not understood as to why two Pendrive seized from the residence of Shri Manish Kapoor, Director and Shri Ravinder Kumar were not put under seal, whereas all the other electronic devices recovered from the residence of other employees were properly sealed. It may not be out of place to mention here that incriminating data was recovered from the electronic devices seized from the premises of the Director & his accountant and the Revenue's entire case is based upon the data retrieved from the said two unsealed Pendrive recovered from the residence of Shri Manish Kapoor and Shri Ravinder Kumar. That also the data retrieved from the Pendrive allegedly recovered from the residence of Shri Manish Kapoor on two different dates show two different informations. These facts admittedly lead to the doubt about correctness of the data so recovered from the said two Pendrives. 24. Otherwise also we find that the evidentiary value of the computer print outs or the data recovered from the Pendrives has to satisfy the conditions of Section 36(B)(2) of Central Excise Act, which are as under:- Section 36 (B) (2) prescribes the conditions for admissibility of a computer print out ....
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...., the data was also retrieved in a manner, which was not in consonance with the prescribed procedure in terms of the above reproduced Section 36B. There is also no evidence on record to reflect upon the fact that the Pendrive from which the data has been retrieved were the same Pendrive which was seized from the premises of the Director and employee. Admittedly identical type of electronic equipments including the Pendrive are available in the market. The appellants have strongly contended that whereas the seized Laptop and harddiscs have reflected the unique number for identification, the Pendrive seized from the Director's residence has not reflected the product code number of the said Pendrives. As such there is a serious doubt about the data allegedly retrieved from said Pendrive. It is also seen that the Pendrive 16GB Sandisk recovered from the residence of the Director was opened in the office of the Chief Commissioner, Noida on two different dates i.e. on 03.12.2014 as also on 15.02.2016 and data was retrieved from therein. However, the data retrieved on two different dates is not exactly similar and the retrieved data on 15.02.2016 contains some additional information, whic....
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....t shown to have been used regularly to store or process information for the purposes of any activities regularly carried on by the company and it was also not shown that information of the kind contained in the computer print out was regularly supplied by the company to the personal computer of Shri Sampat Kumar, a Junior officer of the company, in the ordinary course of activities and it was not shown that the computer was operating in the above manner properly, conditions cannot be held to be satisfied by the Revenue. The said provisions cast a burden on the party who wants to rely on the computer print out to show that the information contained in the printout had been supplied to the computer in the ordinary course of business of the company. For arriving at the above conclusion, Tribunal relied upon the precedent decision in the case of International Computer Ribbon Corporation v. CCE, Chennai reported in 2004 (165) E.LT. 186, wherein after observing that the printouts were neither authentic not recovered in Muzzaaffarnagar and the assessee having disowned the same, Revenue's finding of clandestine manufacture and clearances on the same basis was rejected. .............." I....
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....one with the retrieved data by any interested person. When there are glaring procedural lapses in following proper procedure prescribed under the law, reliance on the retrieved data was not proper. The said findings by Member(Judicial) were not agreed upon by Member(Technical), who observed that since the retrieved data stands corroborated by the other independent evidences, the same would be an admissible evidence. Accordingly difference of opinion was recorded. The said difference of opinion was decided by the then Hon'ble President of the Tribunal, agreeing with Member(Judicial). It was held that there being lacunas in procedure of retrieval of data from the computers and potential tempering is not ruled out, demand of duty based on the said data is not sustainable. Accordingly by majority decision, it was held that the allegations of clandestine activities cannot be upheld against the manufacturers. 29. As regards the adjudicating authority's reliance on the statements of various persons, it is seen that first of all only sample statements from some of the selected deponents were recorded by the Revenue. The appellants were procuring raw materials from a huge number of....
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.... considerable as evidence. To the same effect is the Delhi High Court's decision in the case of J.K.Cigarette v. Collector of Central Excise [2011 (22) S.T.R. 225 (Del.)]. The Hon'ble High Court observed that quasi-judicial authority can rely upon statements only when stated ground is proved and Section 9D does not confer arbitrary powers upon quasi-judicial authorities. Right to cross-examine in quasi-judicial proceedings can be taken away only in certain exceptional circumstances. Further the Hon'ble Punjab & Haryana High Court in the case of Jindal Drugs Pvt.Ltd. v. UOI [2016 (342) E.L.T. 67] has observed that the procedure prescribed in Section 9D(1) of Central Excise Act, 1944 providing cross-examination has to be scrupulously followed as much as in an adjudication proceedings as in criminal proceedings relating to prosecution. The adjudicating authority cannot straightway rely on statements recorded during investigation/enquiry before Central Excise officers and such statement can be relied upon only after the same is admitted in evidence in accordance with the provisions of Section 9D(1) of Central Excise Act. Further in the case of Ambica International v. UOI reported....
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....nt evidences so as to inspire confidence in the Revenue's allegations or to at least show the evidences, which may tilt the case in favour of the Revenue on the principle of preponderance of probabilities. The clandestine allegations, being in the nature of quasi-criminal proceedings, cannot be upheld on the basis of assumptions and presumptions and require sufficient evidences. At this stage we may refer to the Tribunal's decision in the case of M/s.Arya Fibre Pvt.Ltd. v. Commissioner of Central Excise, Ahmedabad [2014 (311) E.L.T. 592(Tri.-Ahmd.)], wherein after considering the various precedent decisions, certain fundamental criterias which should be established by the Revenue to uphold the charges of clandestine removal were laid down. For better appreciation we reproduce the same:- "40. After having very carefully considered the law laid down by this Tribunal in the matter of clandestine manufacture and clearance, and the submission 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 ....
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....ly when the appellant was not having production capacity to manufacture such a huge quantum of alleged clandestine production, the Revenue's case looses its stand. 33. By applying the above principles to the facts of the present case we note that though there may be certain doubts against the appellant, but the evidences produced by the Revenue cannot be considered to be sufficient so as to uphold the huge demand of duty against the appellant. 34. It is well settled law that allegations and findings of clandestine removal are required to be upheld on the basis of sufficient and tangible evidences and not merely on the basis of assumptions and presumptions. The Hon'ble Allahabad High Court in the case of Continental Cement Co. v. Union of India [2014 (309) E.L.T. 411 (All.)] has observed that clinching evidences as regards purchase of raw materials, use of extra electricity, sale of final products, transportation, payment, realization of sale proceeds, mode and flow back of funds are required to be produced by the Revenue to establish the charge of clandestine removal, which cannot be confirmed based on presumptions and assumptions. The court further observed that it is a seri....