AI Drafter 
TaxTMI 
TaxTMI 
2019 (11) TMI 721
X X X X Extracts X X X X
X X X X Extracts X X X X
....th Central Excise Department to manufacture of C.I. Castings and Machine parts. An intelligence was gathered that M/s. MWF by were engaged in evasion of duty by floating various dummy units, so as to avail the benefit of duty free clearances under SSI exemption Notification No.08/03-CE dt.1.3.2003 as amended. On the basis of that intelligence, the search operations were conducted by the officers of Anti-Evasion branch of Delhi-IV Central Excise Commissionerate, Faridabad on 03.08.2010 at various business/residential premises belonging to M/s.Mech-Well Group. Shri Gaurav Gupta, who was qualified engineer, started the C.I.Castings manufacturing business with his proprietorship firm M/s. MWF and got the same registered with Central Excise department in 2003. He was assisted in his business by his accountant Shri Sunil Goel and his factory in-charge Shri P.K.Sharma and thereafter his father, Shri Vijay Gupta and his younger brother Shri Saurabh Gupta, who were staying with him in the same house as a joint family, one more unit namely, M/s. Industrial Thermopac (M/s.IT) was also got registered by him with Central Excise department in 2003 for manufacture of Thermopac Packing materials a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....showing their annual sales below the exemption limit of Rs. 1.50 crore as prescribed under Notification No.08/03-CE dt.1.3.2003 for taking benefit of duty free clearances. 6. It is alleged that this showed the deliberate intention of Shri Gaurav Gupta to evade payment of duty since he was well versed with the Central Excise provisions, being Central Excise registrant for long time. It was also found that free flow funds among all the said eight entities and there was heavy cash withdrawals in the bank accounts of the respective firms, which were reaching the ultimate beneficiary i.e. Shri Gaurav Gupta. The fact regarding free flow of funds has also been admitted by Shri Gaurav Gupta in his statement and it was also admitted by him in the said statement that the funds were transferred from one unit to another unit as per their requirement, it was the same where their family owned concerns. Shri Gaurav Gupta was getting active assistance from his father, his brother, his accountant, Shri Sunil Goel, his factory in-charge, Shri P.K.Sharma, their foreman Shri Manoj and his father‟s trusted man and employee of IT, Shri Mool Chand and Shri N.K.Gupta. Therefore, it is alleged tha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....003, due to the reasons mentioned in the notice, that these dummy units floated by Shri Gaurav Gupta, therefore, they are liable to pay duty on their clearances and the duty was demanded from them. In these set of facts, a show cause notice dt. 6.5.2011 was issued for demand of duty for the period 12.4.2006 to 30.07.2010. The matter was adjudicated and following order has been passed:- Against the said order, the appellants are in appeal before us. 8. Ld. Counsel for the appellants submits as under:- 9 The issue involved is the denial of benefit of Notification No.8/2003-CE dated 01-03-2003 to six units. The three units mainly M/s. Premier Castings (M/s. PC), M/s. Castech Industries (M/s. CTI) and M/s. Dynocast Industries (M/s. DI) have been treated as dummy units of M/s. Mech-Well Foundry (M/s. MWF). Their respective clearances have been clubbed with that of M/s. MWF on the ground that the goods i.e. CI castings were actually manufactured by M/s. MWF and cleared on the invoices of these three dummy units. The other three firms namely M/s. Industrial Casting (M/s. IC), M/s. Gautam Industries (M/s. GI) and M/s. S.G. Ferro Engineering Pvt. Ltd. (M/s. SGFEPL) have also been d....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... before admitting a statement in evidence the evidence of a witness must be recorded before the Adjudicating Authority. Only after recording of such statement before the Adjudicating Authority the said evidence can be admitted in evidence. However, in the present case the Adjudicating Authority has straightway relied upon the statements recorded during investigation of enquiry without following the procedure laid down under Section 9D of the CEA,1944. 13. That in respect of the alleged three dummy units M/s. PC, M/s. CTI and M/s. DI the respective Appellant had brought on record lot of documentary evidences which clearly prove that all the three units were not dummy units but were very much in existence. In this regard, the details of the documentary evidence have been highlighted which were brought on record before the Adjudicating Authority. In fact these records mainly consisted the details of the Bank Accounts which showed the funds which were invested to setup the respective units, the details of purchase of plant and machinery, rent agreement, sale tax registration, assessment orders by the Sale Tax Authorities and Income Tax returns including balance sheets of each unit. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the sales were effected outside the State of Haryana. As is evident from the invoice dated 15- 12-2008 wherein the sales were made to NOIDA, UP vide VAT D-3 form number 9810694. Similar is the case in respect of invoice dated 5-12-2008, wherein reference to form UP 38 and form D-3 are given. Similar is the case in respect of invoice dated 4-12-2008 . There is no evidence at all to prove that the raw materials which were purchased by the three dummy firms were off loaded at the premises of M/s. MWF and the finished goods were also cleared from the said premises. There is not even a single statement from the driver of the vehicle or the transporter disproving the contents of the details mentioned on the respective invoices both in respect of purchase of raw materials and sales of finished goods. 14. That the alleged dummy units were in existence is proved from the fact that the officers had seized the documents relating to these three units from the residence of Shri Sunil Goel on 3-8-2010. The officers drew a panchnama dated 3-8-2010 would reveal that these documents related to M/s. PC, M/s. CTI and M/s. DI which included their invoices files relating to Banking transactions, St....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s all the three units had their respective TIN numbers which could not be granted to them without providing the above information to the VAT authority. 18. That there were allegations in the Show Cause Notice that it was M/s. MWF which had cleared the finished goods under the invoices of these three dummy firms. It was alleged that it was Shri Gaurav Gupta Proprietor of M/s. MWF who has created these three dummy units. It has been categorically alleged that M/s. PC, M/s. CI, and M/s. DI were dummy and sham units which were created by Shri Gaurav Gupta and his father Shri Vijay Gupta. In the Show Cause Notice again, it was alleged that the firms viz. Premier Castings, M/s. Castech Industries and M/s. Dynocast Industries, created under their respective proprietorships by Shri Gaurav Gupta and his father Shri Vijay Gupta, should not be treated as dummy and sham units. This contradictory nature of allegations are clear indicator that these three units were independent units. 19. Even in the Order-in-Original there is absolutely no finding that the sales proceeds of alleged three dummy units flowed back to Shri Gaurav Gupta or any of his family member. The only finding in this reg....
X X X X Extracts X X X X
X X X X Extracts X X X X
....units were made to deposit Rs. 15 lakhs each at the time of search. Further the duty has also been confirmed against these two units which would mean that these are separate and independent units and had no relation whatsoever with M/s. MWF and M/s. IT. As regards the M/s. SGFEPL it is a private limited company and is separate juristic person. The duty demand has also been confirmed against them which would mean that it is a separate and independent unit. 25. That the Appellants have also relied upon the various judgments. The gist of the said judgments is discussed hereinunder:- (i) Tele Brands (India) Pvt.Ltd. vs. CC (Imports), Mumbai- 2016 (336) ELT 97 (Tri.-Mum) pertain to the issue of retraction of a statement. It has been held that a retracted statement cannot be considered as a confessional statement. (ii) Rakesh Kumar Garg vs. CCE-2016 (331) ELT 321 (Del.) (iii) Vinod Solanki vs. Union of India-2009 (233) ELT 157 (SC). 26. On the other hand, Ld. AR opposed the contention of the Ld. Counsel and submits as under:- 1. That the issue of Revenue in the case is clubbing of clearances of all units admittedly being controlled and managed by....
X X X X Extracts X X X X
X X X X Extracts X X X X
....AN card to Sh. Gaurav Gupta; as per instructions of Sh. Gaurav Gupta he went to the P.N.B., Ballabgarh Branch for opening a current account in the name of Dynocast Industries; as per Sh. Gaurav Gupta‟s directions Sh. Sunil Goel, Accountant of Mech-Well accompanied him in said bank; as per Sh. Gaurav Gupta‟s directions he used to sign on blank cheques of Dynocast Industries; he does not know about amount withdrawn by using such blank cheques signed by him; he unaware as to whom these blank cheques are issued; only Sh. Gaurav Gupta himself was filling said blank cheques signed by him; he has not invested any money in the firm; Sh. Gaurav Gupta had not given him any money as profit earned by said firm; he was only a dummy proprietor and actual proprietor & beneficiary was Sh. Gaurav Gupta; he is unaware regarding the person preparing and signing invoices of Dynocast Industries and only Sh. Gaurav Gupta can explain; he is unable to explain reasons for mentioning of three different addresses of Dynocast Industries as he is proprietor of company only on papers and actual reason and intention of the same is known to Sh. Gaurav Gupta; he is unable to explain about rent agreemen....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... any manufacturing facilities or C.I. Castings being manufactured in said premises; he was making books of accounts of said firm only on the basis of documents given by Sh. Gaurav Gupta; the said sale bills and other records of Premier Castings were earlier kept in the office of Mech-Well; sale bills of Premier Castings were prepared mostly by him and were signed in the name of "Mool Chand" by him; some sale invoice of Premier Castings were also prepared and signed by Sh. Gaurav Gupta; he has seen invoices of Premier Castings as prepared by him and signed by him as Mool Chand; he identified invoices prepared and signed by Sh. Gaurav Gupta and appended his signature; he has not seen any manufacturing activity in declared premises; it is possible that C.I.Castings were manufactured and cleared from premises of Mech-Well Foundry; he prepared and singed said invoices since he was duty bound to do same as per directions of owner Sh. Gaurav Gupta; on record Dynocast Industries is Prop. concern of Sh. P.K.Sharma of Mech-Well; he has never seen these premises and as per his knowledge C.I.Castings shown cleared against invoices of Dynocast Industries were manufactured and cleared from Mech-....
X X X X Extracts X X X X
X X X X Extracts X X X X
.....2028/9, Faridabad; he is voluntarily tendering two post-dated cheques as payment of duty involved on goods cleared from Industrial Castings and Gautam Industries; said cheques have been tendered after discussing with his brother and father; they are not paying any rent to Sh. Saurabh Gupta for use of premises of Mech-Well; electricity connection of Mech-Well is in name of Sh. Saurabh Gupta; Sh. Sunil Goel is Accountant of Mech- Well and getting a monthly salary of Rs. 15,750/- in cash from account of Mech-Well; he is looking after maintenance of accounts of Gautam Industries, Industrial Castings, Industrial Thermopac & S.G.Ferro Engineering and not getting any consideration in cash or in kind from them; he is looking after maintenance of account of these firms on his directions; Sh.Mool Chand was given employment in Industrial Thermopac; his father had vacant industrial plot at W-3, Sarurpur Indl. Area; said plot was not being used; he got completed all formalities for setting up of a casting manufacturing unit by name of Premier Casting with Sh. Mool Chand as proprietor, who accompanied him to bank and signed account opening forms and other records; plot bearing Gali No.4, Sarurp....
X X X X Extracts X X X X
X X X X Extracts X X X X
....astings sold against bills of Dynocast Industries were manufactured with manufacturing facilities of Mech-Well; address in bank records is residential address of Prop. of Dynocast Industries; he has gone through statement 18.8.2010 of Sh. Pratimesh K. Sharma and express conformity with contents of the same; owning up duty involved on excisable goods cleared on sale invoices of Premier Castings, Castech Industries and Dynocast Industries in past, he voluntarily tender following post-dated account payee cheques as voluntary part payment of said Central Excise duty; any further Central Excise duty in respect of above stated units will be paid by them once the same is determined; he was shown statement 12.1.2011 of his father Sh. Vijay Gupta as well as statement 12.1.2011 of his brother Sh. Saurabh Gupta and after going through contents appended his dated signatures on last pages of both the statements; he confirmed facts stated in both these statements; regarding expenses towards rent, electricity wages & salary etc. as shown in books of accounts of Castech Industries, Premier Castings and Dynocast Industries, which were floated by them in the name of their employees, the stated expen....
X X X X Extracts X X X X
X X X X Extracts X X X X
....oduction whatsoever in Premier Castings and raw-material against Premier Castings were in-fact utilised in own existing unit that is Mech- Well; C.I. Castings shown to be cleared against sale bills of Premier Castings were in-fact manufactured and cleared from Mech-Well; as per knowledge no premises by name of Premier Castings W-2, Sarurpur Indl. Area ever existed; in 2006 one more unit by name of Castech Industries with Sh. Sunil Goel, Accountant of Mech-Well was started by him and his son Sh. Gaurav Gupta with address W-3, Sarurpur Indl. Area; he was partly owner of said premises; he and Sh. Sunil Goel entered into a rent deed for same premises for which he has already entered into rent agreement with Sh. Mool Chand; as in case of Premier Castings, Castech Industries also did not commence any production from premises W-3, Sarurpur Indl. Area and raw-material purchased in name of Castech Industries was utilised by Mech-Well for production of C.I. Castings and same were cleared from Mech-Well against bills of Castech Industries; no rent was received by them through cheques from either Premier Castings or Castech Industries, however, to complete records rent payments by cash have be....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ement of following suppliers/buyers have been recorded, which establish that all units were managed and controlled by Sh. Gaurav Gupta and C.I. Castings were cleared from Mech-Well Foundry, but invoices raised in the name of other units. i) During search of Mech-Well on 3.8.2010 a driver Sh. Dharmender, vehicle Registration No.HR38E9981 with invoice No.600 dated 3.8.2010 issued by Hans Industry in favour of S.G.Ferro (P) Ltd. came in premises of Mech-Well to unload drums of silicate. In his hand-written statement 3.8.2010 he admitted that he came to unload the goods at premises of Mech-Well against said invoice and is supplying here silicate for the last year on the direction of owner of Hans Industry. ii) Sh. Vidya Sagar Hans of Hans Industry in his statement 29.9.2010 has inter alia stated that other units also belong to same group, which are headed by Sh. Gaurav Gupta; they used to receive orders from Sh. Gaurav Gupta; material delivered either at Mech-Well Foundry, Industrial Castings or S.G.Ferro Engineering Pvt. Ltd. irrespective of name and address mentioned on bills payments were received from firm to which said goods were billed; he has seen statement 3.8....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ced in the name of other units; never seen manufacturing activities in above three units; Sh. Gaurav Gupta used to deliver C.I.Castings and he used to raise invoices of any of their firms. 6. Findings of Adjudicating Authority under Order-in- Original No.9/2013 dated 21.11.2013 with regard to Record of cross-examination is that Most of persons not retracted their statements and S/Sh. Saurabh Gupta, Sunil Goel, MoolChand, Vijay Gupta only submitted photo copy of postal receipt in respect of retracted statements and not produced any documentary evidence regarding receipt of retraction communication. The statements rendered before Central Excise officers have evidentiary value and relied upon decision of the Hon‟ble Apex Court in the case of Commissioner of Central Excise vs. Kalvert Foods Ltd. Further, discussed Notification No.8/2003 and relied upon certain decisions of Hon‟ble Apex Court/Tribunals supporting clubbing of value in such cases. For common Management: Facts, documents and statements establish that all units were controlled by Sh. Gaurav Gupta. There is common source of procurement: Fabricated documents like bills were rais....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ct of Industrial Castings and electricity bills are in the name of one Sh. Chander Prakash. Electricity bills in respect of Gautam Industries is in the name of one Sh. Sunder Dass; iii) Electricity connections are in the name of one Sh. Chander Prakash; iv) Electricity connections is the name of one Sh. Sunder Dass and Letter 6.4.2011 from SDO, OP S/Div, DHBVN, Pali having details of Electricity connections. v) Letter 7.10.2008 from Premier Castings requesting to send Sales Tax Form-D-I at residential address of Sh.Gaurav Gupta. vi) Latest sale invoice book Sr.No.401 to 450 of Mech-Well resumed from premises of Industrial Castings; vii) Purchase invoices of Mech-Well resumed from premises of Industrial Castings; viii) Latter 22.7.2008 signed by Sh. Gaurav Gupta to Manager, AIRTEL on behalf of Gautam Industry; Proprietors of dummy firms admitted that these firms were floated on papers and there was no plant & machinery and manufacturing facility and this fact has been affirmed by Sh.Gaurav Gupta and Sh. Vijay Gupta during statements. During investigation they could not produce any invoice relating to purchase as well as ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....upplier of raw-material as well as to pay salary to employees. Thus in view of above facts and documentary evidence on record claim of the Appellants that all 8 units are independent and their clearances could not be clubbed is wrong and not justifiable. The Adjudicating Authority after consideration of facts and documentary evidence produced by the Appellants held common management, common source of procurement, common use of machinery, common marketing arrangement, common financial control and flow-back, rent free space/fictitious rent agreement, common employees. 8. Claim of Appellants that confessional statements which were retracted cannot be treated confessional:- To know the intent of legislature statutory provisions of law under which these statements have been recorded are reproduced as under:- Section 14(2) of the Central Excise Act, 1944: All persons so summoned shall be bound to attend, either in person or by an authorised agent, as such officer may direct, and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and to produce such documents and other things ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y all these persons based only in Faridabad choose to send their retraction letters continuously to the Commissioner, Central Excise, Faridabad by post and not lodged complaint by paying visits to his office and got official receipt against these retraction letters. But when the learned Commissioner denied receipt of original copies of these retraction letters then the claim of the Appellants is not free from doubt. It is settled law by the Hon‟ble Apex Court that the Central Excise Officer is not a Police officer and statement made under Section 14 of Central Excise Act, 1944 is admissible piece of evidence and mere retraction of confession not sufficient to make confessional statement irrelevant. In support certain decisions are being relied upon. 9. Alleged natural justice has not been denied to anyone as due opportunities by way of show cause notice and adjudicating proceedings have been extended. In support certain decisions of the Hon‟ble Court are being relied upon. 10.Claim that alleged dummy units - Premier Castings, Castech Industries and Dynocast Industries were closed for over a year when search was conducted on 3.8.2010 and brought on reco....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Excise duty since they have not manufactured any goods, but duty has been demanded from the firms who manufactured and cleared the goods on the sale invoices of these dummy firms. 12.The Adjudicating Authority denied SSI exemption and confirmed demand with interest and equal penalty against following units:- i) Confirmed Central Excise duty of Rs. 1,03,37,761/- against Mech-Well Foundry clubbing clearance made on the invoices of three dummy firms during 2006-07 to 2009-10 and appropriated part payment of Rs. 50 lakhs; ii) Confirmed Central Excise duty of Rs. 2,59,881/- against Industrial Thermopac on removing Thermo packing material against the invoices of dummy firm - Castech Industries during 2008-09 to 2010-11; iii) Confirmed Central Excise duty of Rs. 76,38,905/- against Industrial Castings on clearance of C.I. Castings/machine parts during 12.4.2006 to 30.7.2010 and appropriated part payment of Rs. 15 lakhs; iv) Confirmed Central Excise duty of Rs. 66,61,336/- against Gautam Industries on clearance of Planomiller Machines during 7.4.2006 to 12.7.2010 and appropriated part payment of Rs. 15 lakhs; v) Confirmed Central Excise....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... during the course of investigation:- 32. All these above documents were found during the course of investigation itself in the case of M/s. Premier Castings (M/s.PC), M/s. Castech Industries (M/s.CTI) and M/s.Dynocast Industries (M/s.DCI), the same has not been denied by the Revenue. Further, various documents have been examined during the course of hearing by the Bench itself which shows that these units indulged in not only domestic sale but also involved inter state sale which shows that the units are independent units having statutory registration with various department identifying them the separate units. The whole case of the Revenue is based on the various inculpatory statements recorded during the course of investigation. The claim of the appellants is that the Revenue has relied upon the inculpatory statements which were retracted. The claim of the revenue is that retraction have not reached to the office of Commissioner, therefore the retraction cannot be acceptable. But we find that some of the witnesses were called for cross examination, during the course of investigation and while drawing panchnama at the time of visit, these firms were found non existing as they ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dence with the department but they were never objected to. We also find that in this case although both the companies are having different brand names of their product such as NOVA/DSA. The units are having their own separate machinery having manufacturing the goods and same have been cleared on payment of duty by availing SSI exemption of both the units separately. The only allegation is that sometimes, salary of one of the employees was paid by the other firm or they are managed by one person. Moreover, the dealers get the commission on the combined sales of both the companies. These things cannot constitute that there was a mutuality of interest and therefore, clearances of one unit cannot be clubbed with the clearance of other unit. 17. We find that this issues has come before the Tribunal in various cases whereas in the case of Bullows India Pvt. Ltd. v. CCE, reported in 2012 (284) E.L.T. 584 (T) (supra) wherein this Tribunal has observed as under: We find that in the present case the issue is whether the appellants are entitled for the benefit of Notification 175/86-C.E. and subsequently Notification 1/93-C.E., therefore, the ratio of the above decision of t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e present case. It stands held in precedent decision that financial flow back and financial intertwining between the two units is the main reasons for reflecting upon the fact of their being independent or not. One such reference can be made to in decision of the Hon‟ble High Court in the case of M/s. Renu Tandon v. Union of India - 1993 (66) E.L.T. 375 (Raj.). Similarly, in the case of M/s. Electro Mechanical Engg. Corporation v. CCE, Jaipur - 2003 (152) E.L.T. 194 (Tri.), Girish Electricals Industries v. CCE, Mumbai - 2004 (167) E.L.T. 299 (Tri.) it was held evidence of common office premises, common staff and common maintenance of records, etc. cannot be held to be sufficient to club the clearances of the units, who have different registration in all the departments and in the absence of any financial flow back. 19. We further, analyse the decision of Ennar Cements Pvt. Ltd v. CCE reported in 2013 (292) E.L.T. 245 (T) (supra) wherein this Tribunal has observed as under : "We have gone through the records of the case carefully. The appellants are two Private Limited Companies. They have separate existence. The investigation reveals that the clearances of o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and it is contrary to the Board‟s Circular." 20. We further find that in the case of Alpha Toyo Ltd. v. CCE, New Delhi reported in 1994 (71) E.L.T. 689 (Tribunal) this Tribunal has observed as under : SSI exemption - Clubbing of clearances common Managerial Control, a few common directors and advancing of interest free loans by main unit to other units not sufficient to make other units as dummies when they are having independent control or money flow back to the main unit - Clearances not clubbable - Situation not to be confused with that of related person concept under Section 4(4)(c) of Central Excises & Salt Act, 1944 - Notification No. 175/86-C.E., dated 1-3- 1986 - Section 5A ibid. 21. In the case of Renu Tandon v. Union of India reported in 1993 (66) E.L.T. 375 (Raj.) Exemption - SSI Exemption - Clubbing of clearances - Two units situated at same premises, manufacturing similar product, having some common management, office and labour and common electric connection - One unit owned by father-in-law and the other by daughter-in-law and work of both units looked after by her husband - In absence of evidence of common finding and financ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the money changer on the ground that the same were not forwarded with the covering letter confirming the contents thereof and further for the reason that the same were not received in response to the department‟s letter. These two reasons are no ground for us to doubt the veracity and authenticity of the moneychanger‟s certificate, all the more when the adjudicating authority caused enquiries to be made and has accepted the certificates only after satisfying himself on verification. We also note that Philip Fernandes had retracted his statement on 16-3-1998 itself i.e., immediately after his statement was recorded under Section 108 of the Customs Act, 1962 on 15-3-1998 and that he had written a letter to the department on 24-4-1998 explaining that he was a man of means being an engineer with the National Drilling Company, Abu Dhabi since 1980 and drawing a salary of more than Rs. 1.50 lakh per month; that he had lend 8 lakhs UAE Dirhams to one Mr. Jimmy Johnson for purchase of water well drilling rig from USA; that Mr. Johnson returned 8,30,000/- Dirhams (capital with interest); that he used a sum of 7,17,202/- Dirhams to buy assorted foreign currency from Thomas Cook....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ook Al Rostamani, Dubai certifying purchase of foreign currencies in Dubai by Shri Fernandes runs contrary to the oral evidence in the form of statements of Shri Fernandes, Shri Nilesh Popat and Shri Praveenbhai Kheni. It is well settled that when the statements recorded under the provisions of Section 108 of the Customs Act, 1962, (which are retracted), are inconsistent with the documentary evidence, the documentary evidence is to be preferred. This is the view expressed by the Tribunal in the case of R.P. Industries v. Collector of Customs - 1996 (82) E.L.T. 129. Although in that case the documentary evidence was seized during the search that would not alter the position in this case since the documentary evidence in the form of moneychanger‟s certificate submitted to the department before the issue of the show cause notice has been verified and found to be genuine and correct. The same view has been taken in final Order Nos. CI/2874 & 2875/WZB/2001, dated 19- 9-2001 [2002 (140) E.L.T. 225 (T)] in the case of Kishin Shewaram Loungani & Another v. CC, Mumbai." 36. Therefore, we hold that the clearances of the firms, namely, M/s. Premier Castings (M/s.PC), M/s. Castech Ind....
X X X X Extracts X X X X
X X X X Extracts X X X X
....units and are entitled for the benefit of SSI exemption under Notification No.08/03-CE dt.1.3.2003 as amended during the impugned period. Therefore, no duty demand is sustainable against these three units. 42. In view of above discussion, we hold that the sole allegation of the Revenue is based on the understanding that these units are of M/s. Mech-well Group and the same are controlled and managed by Shri Gaurav Gupta in the name of dummy units. Such allegation is not sustainable as discussed hereinabove in detail. The Revenue‟s case is based on the oral evidence by discarding the documentary evidence available on records during investigation. Oral statements have no evidentiary value against the documentary evidence available on record. 43. In that circumstance, we hold that the allegations made by the Revenue in the show cause notice are not sustainable. Accordingly, we do not find any merit in the impugned order and the same is set aside. Therefore, no demand is sustainable against the appellants. Consequently, no penalty is imposable on the appellants. 44. In the result, the impugned order is set aside and the appeals are allowed with consequential relief, if an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd Higher Education Cess) forthwith. Document 2 4. I order for payment of interest, at appropriate rates, on Central Excise duty liability of 1,03,37,761/- (including Education Cess and Secondary and Higher Education Cess) under Section 11AB (now 11AA) of the Central Excise Act, 1944 and I direct M/s Mech-Well Foundry, Gali No. 8-A, Sarurpur Industrial Area, Sohna Road, Faridabad (former address Plot No. 13-15, Sarurpur More, Near Baba Akash Nath Dharam Kanta, Sohna Road, Faridabad) to also pay the same forthwith. 5. I impose penalty of 1,03,37,761/- (Rs. One Crore Three Lacs Thirty Seven Thousand Seven Hundred Sixty One Only) on M/s Mech- Well Foundry, Gali No. 8-A, Sarurpur Industrial Area, Sohna Road, Faridabad in terms of provisions of Section 11AC of the Central Excise Act. 1944 and I direct them to also pay the same forthwith. In terms of the provisions of Section 11AC of Central Excise Act, 1944, where such duty, as determined under sub-section (2) of section 11A and the interest payable thereon under Section 11AB of Central Excise Act, 1944 is paid within 30 days from the date of receipt of this order determining such ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er 'if' statement on line 341 Document 5 13. I deny M/s Gautam Industries, Plot No. 15, Sarurpur Mor, Near Baba Akash Nath Dharamkanta, Sohna Road. Faridabad, a dummy unit of M/s Mech-Well Foundry, Gali No. 8-A, Sarurpur Industrial Area, Sohna Road, Faridabad (former address Plot No. 13-15, Sarurpur More, Near Baba Akash Nath Dharam Kanta, Sohna Road, Faridabad), the benefit of exemption under Notification No. 08/2003-CE dt 1.3.2003. 14. I confirm demand of Central Excise duty amounting to 66,61,336/- (Rupees Sixty Six Lacs Sixty One Thousand Three Hundred Thirty Six Only) (including Education Cess and Secondary and Higher Education Cess), on M/s Gautam Industries, Plot No. 15, Sarurpur Mor, Near Baba Akash Nath Dharamkanta, Sohna Road, Faridabad, not paid by them on the clearances of "Planomiller Machines', effected by them during the period 07.4.06 to 12.07.2010 under proviso to Section 11A(1) of the Central Excise Act, ibid. The voluntary part payment of Central Excise Duty of 15,00,000/- (Rs. Fifteen Lakhs Only) by M/s Gautam Industries, Plot No. 15, Sarurpur Mor, Near Baba Akash Nath Dharamkanta, Sohna Road, Faridabad ....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., Faridabad in terms of provisions of Rule 26 of the Central Excise Rules ibid and I direct them to pay the same forthwith. 25. I impose penalty of 15,00,000/- (Rupees Fifteen Lacs Only) on Sh. Mool Chand, Employee of M/s Industrial Thermopac, Plot No. 12, Gali No. W-6, Sarurpur Industrial Area, Sohna Road, Faridabad and Proprietor of M/s Premier Castings, Plot No. 12, Gali No. W-6, Sarurpur Industrial Area, Sohna Road, Faridabad in terms of provisions of Rule 26 of the Central Excise Rules ibid and I direct him to pay the same forthwith. 26. I impose penalty of 1,00,000/- (Rupees One Lac Only) on Shri Pritimesh Kumar Sharma, Factory Incharge of M/s Mech-Well Foundry and Proprietor of M/s Dynocast Industries Gali No. W-8, Sarurpur Industrial Area, Sohna Road, Faridabad in terms of provisions of Rule 26 of the Central Excise Rules ibid and I direct him to pay the same forthwith. 27. I impose penalty of 50,000/- (Rupees Fifty Thousand Only) on Shri Vidya Sagar Hans (Husband of Mrs. Asha Hans, Proprietor of M/s Hans Industries), Concerned Person of M/s Hans Industries, Plot No. 199, Sector-24, Faridabad in terms of provisi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....returns ITR for the year 2006-07, 2007-08, 2008-09 including 793-816 Balance-Sheet. 767-765 774-776 777-781 782-786 787-792 Document 11 S. CONTENT No 1 Line Diagram Showing Castech Industries 2 PAGE. No. 818 Copy of pass book of wife of Mr. Sunil Goel showing various 819-826 withdraw entries 3 Trading and Manufacturing Sale Castech Industries 4 56 7 8 6 827 Statement of Canara Bank showing opening of account by 828 Mr. Sunil Goel 829-830 Rent agreement between Mr. Vijay Gupta and M/s. Cl. Letter of Sales Tax department regarding change of 831 manufacturing to trading dated 4-04-2008 Letter of Sales Tax department regarding change of address 832 to house no. 2024, Sector-3, Faridabad Certificate of Sales Tax registration dated 26-11-2006 Details of expenses of rent, salary wages, electricity, generator, cartage etc. Assessment order Sales Tax for the year 2006-10 10 11 Sales Tax returns 12 13 Income Tax refund F.Y. 2009-2010 833 834 835-839 840-843 Copies of invoices of purchase of Machines by M/s. Castech 844-847 Industries. 848-850 14....
X X X X Extracts X X X X
X X X X Extracts X X X X
....6 Invoice copies of various machine purchase by M/s. Industrial 985-994 Castings 17 Rent agreement between Mr. Saurabh Gupta and Sunyojita 995-996 Panwar for Plot at Gali no-W-6 18 19 20 Certificate of Sales Tax registration 14-04-2003 Gali no-W-6 Sales Tax assessment order for the year 2005-06 to 2009-10 Various Sales tax returns 997 998-1002 1003-1027 21 Various ITR, returns for the year 2006-07 to 2010-11 including 1028-1069 the Balance Sheets. Document 14 S. CONTENT No 1 Line Diagram Showing Gautam Industries 2 3 PAGE. No. 1071 Central Excise registration certificate dated 9-8-2010 applied 1072-1073 after search Copy of receipt of house tax for the year 2008-09, 2009-10 and 1074-1079 2011-12 at address of M/s. GI Co 8 Document and invoices no-32 dated 29-08-2006 of machine 4 Rent agreement between Mr. Gaurav Gupta and Gautam 1080-1081 Industries 5 Letter to Sale tax regarding change of address dated 01-09- 1082 2008 from napcow gear complex to Sururpur 6 7 Document and invoice no. 98 dated 27-03.2008 from machine 1083-1086 of export to keny Certific....