TaxTMI 
TaxTMI 
2019 (11) TMI 782
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....eels, Neelkanth Recycling Pvt Ltd, Ms Anj Metal Recycling Pvt Ltd, Samana Concast Mgg, Northern India Steel Rolling Mills Mgg, Dasmesh Alloys Mgg, Shiva Castings Pvt Ltd Mandi Gobindgarh, Ms Dasmesh Castings Pvt Ltd, Shri Ganesh Alloys Mgg., Hind Alloys Mgg, Anil Kumar, Shri Kanha Steel Rolling Mills Mgg, Ms Harish Goyal, Ms A R Castings Pvt Ltd, Ganga Castings Mandi Gobindgarh, Ashirwad Steel & Agro Industries Mgg, Shri Jagdish Chand Bansal Director, Ms Malerkotla Steel Alloys Pvt. Ltd., Rajesh Gupta, Durga Multimetals Pvt. Ltd., J S Khalsa Steels Pvt Ltd, Sanjay Gupta, Punjab Steels, Shri Rajesh Kumar Mittal, Ms Sona Castings Pvt Ltd, Pawan Kumar, Ms Regal Alloys Pvt Ltd, Naresh Joshi, Subhash Chandra, Nishant Goel, Ms Bhawani Castings Pvt Ltd, Ramal Kumar, Ashok Kumar, Manish Dhingra, Tara Chand Aggarwal, Surendra Pal Bansal, Ms K L Alloys Pvt Ltd, Jeewan Kumar, Ms Behari Lal Ispat Pvt Ltd, Ms Rajdhani Iron Products Pvt Ltd, C S Castings Pvt. Ltd. Mgg, Dinesh Garg, Suresh Mittal, Paul Steels Pvt Ltd, D.H.Casting Pvt. Ltd. Khanna, Jaswinder Singh Matharoo, M/s Shiva Alloys, Bhawani Industries Ltd Mandi Gobindgarh, Jai Parkash Goyal Director, Ms Raja Alloys Metals Pvt Ltd, Kamal K....
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....scrap to the re-rollable units in cash without cover of invoices and issuing invoices to the furnace units without supply of goods and the amount received in cash from re-rollable scrap were paid to the furnace units after deducting their commission. Therefore, the furnace units are not entitled to avail cenvat credit. Correspondently, the same are recoverable from them and all the appellants are involved in such a gamut of paper transactions are to be penalized. In these set of facts, a show cause notice dated 20.01.2017 was issued to the units who are taking cenvat credit on the invoices issued by the three scrap dealers cited herein above during the period 01.01.2012 to 27.11.2012 and the same was sought to be recovered from them alongwith interest and to impose penalty on all the appellants including scrap dealers. The matter was adjudicated and the impugned order has been passed as stated in Paragraph-1 herein above. Against the said order, the appellants are before us. 3. The Ld. Counsel Shri Sudhir Malhotra on behalf of the appellants, namely, Shri Adarsh Garg Director, M/s Jogindra Castings Pvt Ltd, Shri Sanjay Gupta, M/s Oasis Enterprises, M/s Mathli Steels, M/s Neelkan....
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....hnama dt. 27.11.2012, and a register was recovered from office premises of M/s Yashoda Traders of panchnama dt. 27.11.2012. Reg. Denial of cenvat credit against invoices of M/s SST, M/s SMM & M/s YT II. (a) The major case has been built up on the basis of record resumed (File No. 26 & 27) from godown of M/s SST vide panchnama dt. 27.11.2012 allegedly drawn in the presence of Sh. Avtar Singh - Auth. Signatory of M/s SST and two independent witnesses. (b) The File No. 26, 27 allegedly resumed from godown of M/s SST on 27.11.2012, contained details of transactions relating to goods sold to Rolling Mills without bills by M/s SST. Sh. Sanjay Kumar Goel - Manager of M/s SST provided the names of Rolling Mills to whom goods were sent without bills and names of the furnace units to whom cenvatable invoices issued without actual supply of goods. At the outset, it is pertinent to mention that the File No. 26 & 27 contained photocopies and not original of any document. The pen drive resumed from godown of M/s SST on 27.11.2012, did not contain any incriminating documents. Further, none of the Rolling Mill whose names deposed by Sh. Sanjay Kumar Goel, Manager of M/s SST recorded....
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.... and leads to conclusion planting of cloth bag in the instant case. (d) Sh. Sanjay Kumar Goel , Manager of M/s SST during cross examination on 26.12.2018 before Ld. Adjudicating Authority deposed that besides handling work of M/s SST, he was engaged in handling the work of brokerage, arranging finance for others and trading in personal capacity. They supplied goods to both Furnace Units as well as Rolling Mills with invoices. He studied upto 5th standard and had no knowledge of maintaining account. The original documents were not shown to him while recording his statements. His all statements were recorded under pressure/threat. He did not give any statement which revealed from the cross examination of Sh. Sanjay Kumar Goel. (e) Sh. Raj Kumar Kakaram Bansal, Partner of M/s SST during cross examination on 26.12.2018 before ld. Adjudicating authority , deposed that during the period January 2012 to November 2012 he never visited Mandi Gobindgarh; he denied supply of goods to Rolling Mills without bills and receipt of payment in cash thereto. III. The cenvat credit has been denied/demanded from furnace units based upon photocopies of documents allegedly recovered from cloth b....
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....ST cannot be construed as clearances against cash without invoices. There are no corroboration to entries made, brought on records. The table No. 7 shows that invoice No. 1191 dt. 18.07.2012 issued by M/s SST to M/s Kanha Steel Rolling Mills, Mandi Gobindgarh. There are nothing corroborative brought on records to substantiate goodless invoice raised to M/s Kanha Rolling Steel Mills by M/s SST. The Table No. 8, 9, 10 of impugned order purportedly shows sale of goods without invoice to M/s Royal Industries on 29.06.2012 vide vehicle No. 4563 against amount received in cash of Rs. 14,29,700/- as per page No. 115 of File No. 26 (RUD-13). There are no invoice number and date mentioned at said page 115 i.e. invoice No. 963 dt. 28.06.2012 against which goods sold to M/s Jogindra Castings Pvt. Ltd. The Table no. 11 of impugned order reveals that invoice no. 963 dt. 28.06.2012 issued by M/s SST to M/s Jogindra Castings Pvt. Ltd. The vehicle No. PB 13R-4563 mentioned on said invoice No. 963 dt. 28.06.2012, there are no investigation has been caused from transporter/driver. Further, the value of said invoice is Rs. 13,91,778/- and amount received against allegedly supply of goods on 29.....
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.... which showed that 30.480 MT material was transported in Truck No. PB13-4671, having total freight of Rs. 70,704/- out of which Rs. 5,000/- paid in advance to the driver and the balance was paid to the driver after unloading the goods in cash. (a) The Table-20 of impugned order purportedly shows the ledger of M/s SMM maintained by M/s SST. It has been alleged that there were overwriting of some of entries in the name of M/s Neelkanth and M/s Shiva Castings, but Sh. Rajesh Kumar could not offer any answer of such overwriting. There is nothing corroborative brought on records to substantiate that goods were delivered to furnace unit without invoices against said over-writing entries or cash in lieu of cheque were returned to parties mentioned therein. There are neither any statements of consignee nor of transporter nor any flow back of cash brought on records to justify the stand that cenvatable invoices were raised to furnace unit without supply of goods thereto. V. Sh. Yogesh Mittal, Partner M/s YT during cross examination on 26.12.2018 before Ld. Adjudicating Authority deposed that he was not shown any document and forcefully his signatures were taken. The Ld. Adjudicating A....
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....o investigation caused from transporter to substantiate non-delivery of goods against cenvatable invoices disputed by department nor any evidence of flow back in cash in lieu of payment made through cheque justified. Reg. Furnace Units There is no dispute regarding receipt of excisable goods from various ship breaking units of Bhavnagar on payment of duty against statutory invoices by M/s SST, M/s SMM & M/s YT - registered dealers. The issue relates to diversion of goods to registered or un-registered units on cash basis without invoices and issue of cenvatable invoices to furnace units without actual supply of excisable goods. VIII. The Furnace units i.e. M/s Jogindra Casting Pvt. Ltd., M/s Oasis Enterprises Pvt. Ltd., M/s Durga Multimetals Pvt. Ltd., M/s Neelkanth Cycling Pvt. Ltd. etc. have given details of raw material purchased from registered dealers under reference and from others. The detail of finished goods manufactured thereto were cleared on payment of duty. As to how goods manufactured and cleared on payment of higher amount of duty in absence of receipt of raw material from M/s SST, M/s SMM and M/s YT not brought on records. There is no allegation of substitu....
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....no variation in stock of finished goods and raw material found by visiting staff in case of appellants under reference except minor shortage of finished goods of 12.440 MT that too on eye estimation in case of M/s Jogindra Castings Pvt. Ltd. (a) The appellants under reference made payment against raw material purchases through banking channel. There are no evidence brought on record regarding receipt of cash by them in lieu of cheques payment made to M/s SST, M/s SMM and M/s YT. The ld. Adjudicating authority erred in placing reliance on statement of Sh. Sanjay Kumar Goel - Manager M/s SST, Sh. Raj Kumar Kakaram Bansal - Partner M/s SST , Sh. Avtar Singh - Accountant M/s SST & M/s SMM , Sh. Ram Bector - Asstt. Manager M/s YT, Sh. Yogesh Mittal - Partner M/s YT , Sh. Parveen Kumar - Broker, as the said persons during cross examination inter-alia deposed having supplied goods alongwith invoices to furnace units; their statements recoded under pressure and denied their statements were voluntarily in nature. The ld. Adjudicating authority failed to appreciate the deposition made during cross examination before him. The Ld. Adjudicating Authority held that appellant received on....
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....ourt in the case Swadeshi Polytex Ltd. Vs. CCE 2000 (122) ELT 641 (SC) & Lakshman Exports Limited Vs. CCE 2002 (143) ELT 21 (SC) refers. XI. The submissions made by appellants in reply to show cause notice, but, the Ld. Adjudicating Authority has not controverted the submissions of appellants, in his findings of impugned order, he simply reproduced the averments of show cause notice to uphold the allegations. XII. Enquiry from weighbridge There were no investigation caused from weighbridge to substantiate delivery of goods other than furnace units. XIII. Enquiry from Transporters The investigation conducted from transporters reveals that it relates to transportation of goods from Bhavnagar to M/s SST & M/s YT and payment of transportation charges in cash to the drivers. There is no dispute regarding receipt of goods by M/s SST, M/s SMM and M/s YT from Bhavnagar. The invoices possesses registration number of vehicle, there were no investigation caused from transporter/driver substantiating non-delivery of goods to Furnace Unit. XIV. Independent Corroboration M/s SST, M/s SMM and M/s YT are co-noticee in the instant case and their statements incorrectly relied up....
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....CESTAT in the case of Sulekhram Steels Pvt. Ltd. Vs Commissioner of Central Excise 2011 (273) ELT 140 (T) held that confession of co-accused, cannot be used as substantive evidence, it has to be corroborated by independent sources. XV. Reg. Third Party Documents and Photocopies The documents allegedly recovered from third party M/s SST, M/s YT relied upon without any corroboration, which is not an admissible evidence. The Hon'ble Tribunal in the cases of: a) Savitri Concast Ltd. Vs. CCE 2015 (329) ELT 213 (T) held that private records / ledger books recovered from third persons premises cannot be made basis for duty evasion in absence of independent corroboration. The decision of Hon'ble Tribunal in the case of Raizo Plasto Pvt. Ltd. Vs. CCE 2017-TIOL-2330-CESTAT-CHD also refers. b) Arya Fibres Pvt. Ltd. Vs. CCE 2014 (311) ELT 529 (T) held that private records recovered from buyer premises can not be made sole basis for demand for clandestine removal in absence of corroborative evidence. XVI The documents relied upon are photocopies, which is not admissible evidence in law without corroboration. The Hon'ble Supreme Court in the case of J. Yashoda Vs. K. Shobha ....
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....ions made by the furnace units in their appeals / written submissions which may be read as a part of the submission on behalf of present appellants. Submissions on behalf of M/s Sai Steel Traders:- (i) A penalty of Rs. 20,34,12,484/- has been imposed upon M/s SST under Rule 25(1)(d) of Central Excise Rules, 2002 on the allegation that they have sold the goods on cash basis without invoice to various units (registered or unregistered) and cenvatable invoice for the said goods were issued to registered units without actual supply of goods to them, thereby, facilitating availment of inadmissible credit. (ii) That as per Show Cause Notice two premises of M/s SST were searched in MandiGobindgarh by the investigation team. An office at Motia Khan, Sai Market, MandiGobindgarh, was shown to be office of M/s SST. The said office was not of M/s SST rather was personal office of Shri Sanjay Kumar Goyal who not only owns the said place but also physically occupied the same for his own use from where he did his own brokerage for sale of material and trading on personal account, apart from working as part time Manager for M/s SST. A copy of sale deed dated 22.07.2010 in favour of Sanjay....
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.... is no demand on the basis of RUD-11 which was registered resumed from office of Motia Khan. Rather, the demand has been raised on the basis of comparison of file No. 26 (photocopies) resumed from Godown of M/s SST (vide Panchnama RUD-2) and later marked as RUD-13. The same can be seen from heading of Annexure B to the Show Cause Notice (at handwritten page No. 354 of convenience Compilation-II) which reads as "COMPARISON CHART OF FILE NO. 26 RECOVERED FROM M/S SAI STEEL TRADERS AND CORRESPONDING INVOICES ISSUED BY M/S SAI STEEL TRADERS". (vii) File No. 26 RUD-13 was a bunch of photocopies of papers shown to be resumed from the godown of M/s SST (at handwritten Page No. 518 of convenience Compilation-II) and alleged to be maintained by Shri Sanjay Kumar Goyal. However, Shri Sanjay Kumar Goyal, in cross examination,denied to have maintained the said record the way it is presented both in terms of figures and presentation/shown recording of transaction. Rather, he specifically stated that the record is manipulated by way of fudging figures/names or scan copy paste. (viii) Despite of demand of original of RUD-13, the same was neither shown by investigating agency nor was shown b....
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....ated that no personal search was offered by the visiting staff. (f) The bundle of document shown are only photocopies which are later marked as RUD-13. (g) The said bunch of papers were not sealed by the team. Even brief contents of "bunch of papers" were not noted in resumption memo. (h) The statement dated 27.11.2012 (RUD 22) of Avtar Singh states that the said record pertained to "details of entry tax and payments received in cheque as well as cash". Entry Tax is payable at the time of entry of goods in to Punjab. Thus, the said record could not have been related to sale by M/s SST after receipt by them. (xii) The above clearly shows that no such cloth bag recovered from the premises of M/s SST. It is submitted that the visiting team who arrived in the godown was constantly in touch with a third party competitor of the M/s SST over phone and was taking instruction from him. Ld. Adjudicating Authority was requested to summon call records of the visiting team during the period of raid i.e. 1200 hours to 1700 hours on 27.11.2012 which will clearly show the actual fact. However, no efforts were made by the Adjudicating Authority. It is the case of M/s S....
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....Cause Notice issued 4. M/s Hind Alloys Show Cause Notice issued 5. M/s ANJ Metals Recycling (P) Ltd. Show Cause Notice issued 6. M/s Vimla Alloys (P) Ltd. No Show Cause Notice 7. M/s M.R. Alloys Pvt. Ltd. No Show Cause Notice 8. M/s Kaytx Industries Pvt. Ltd. No Show Cause Notice 9. M/s Super Steel Traders No Show Cause Notice It can be seen that out of nine parties mentioned above, no Show Cause Notice has been issued to five parties. Therefore, there is no consistency and credibility of investigation where the Show Cause Notice has been issued on whims and fancies rather than tangible evidence. (xvii) In any case, no data of alleged pendrive can be relied upon in the present case because the provision of Section 36B of the Central Excise Act has not been complied with. Relying upon M/s Popular Paints and Chemicals Vs. CCE - Final Order No. 52716-52718/2018 and M/s Magnum Steels Ltd. Vs. CCE - 2017 (358) ELT 529 (Tri.). (xviii) That the false case made by the department at behest of one of competitor of M/s SST, on his false and misleading information is on weakest footing being not supported by any evidence. On the ot....
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.... There is no enquiry from all the parties involved in the transaction but the revenue has taken a small sample to confirm the allegations on entire transaction for the relevant period. (h) Annexure B to the Show Cause Notice in which the revenue has presumed the connection of entries made in RUD-13 with that of invoices issued by M/s SST, contains entries which totals to cenvat credit of Rs. 5,36,28,668/-. However, the demand in the present Show Cause Notice has been raised for more than Rs. 20.34 cr. against various parties. Therefore, without prejudice to other things, with regard to demand of Rs. 15 crore there is nothing in the Show Cause Notice or the Order in Original and the same is merely a result of assumptions and presumptions. (i) The statements relied upon in the Show Cause Notice are either retracted on the very next day or have been broken in cross examination. (j) The alleged records are resumed from third party who maintained the same for his personal use and contained entries relating to his own business also. (k) The recovery made under RUD-2 is highly suspicious and made in doubtful circumstances. (l) The record RUD-13....
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....ement dated 05.11.2012 of Sanjay Kumar Bansal after reading it, Sh. Raj kumar bansal stated that he was not allowed to read the statement and he was not even provided the copy of his statement. (vi) During cross examination Sh. Raj Kumar kakaram Bansal he discredited his statement relied in Show Cause Notice that goods were delivered to the rolling mills of Mandi Gobindgarh without bills and the payments for the same were received in cash. (vii) The revenue authority in the impugned order has failed to bring on record any evidence from where it can be established beyond doubt that Sh. Raj Kumar Kakaram was involved in issuing of impugned cenvat invoices,then the imposition of penalty under Rule 26 of the Central Excise Rules, 2002 is unwarranted. Submissions on behalf of Shri Sanjay Kumar Goyal:- (i) The Adjudicating Authority confirmed the penalty against Sh. Sanjay Kumar Goyal amounting to Rs. 10,00,000/- under Rule 26(2) of Central Excise Rules, 2002 read section 11AC of the Central Excise Act, 1944 and Section 174(2) of the CGST Act, 2017. (ii) After the visits were conducted, the DGCEI Officers identified Shri Sanjay Kumar Goyal as a person of weak heart who may....
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....nd does not show the correct position of fact. (vii) The Sanjay Kumar Goyal states that he never executed any transaction of M/s Sai Steel Traders, wherein the goods were diverted to one party and only bills are supplied to another. During the relevant period and the total sales including Annexure E, the goods always accompanied the invoices. The case of revenue is false and incorrect. (viii) With regard to the records resumed at Sanjay Kumar Goyal's office in Motia Khan, Sai Market, Mandi Gobindgarh including RUD-11, it is submitted that the said record is Sanjay Kumar Goyal's personal record. That these are not record of Sai Steel Trader. The Sanjay Kumar Goyal apart from handling work of Sai Steel Trader, was also working in his personal capacity as broker / trader and arranged finances for others. In order to keep a track on the supplies / finances facilitated in his personal capacity, he used to maintain his personal records wherein all the entries were made by him as per his own understandings. Since, the Sanjay Kumar Goyal is merely 8th pass and is not conversant with making of accounts he used to make temporary records in consolidated manner which contained details of....
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....ings done by the Sanjay Kumar Goyal in his personal capacity for his meager brokerage / arranging of finance. The Sanjay Kumar Goyal was in knowledge of the trucks coming from Bhavnagar to supply goods in MandiGobindgarh and payment of freight to the truck drivers was also being handled by him for transactions of M/s SST. The truck drivers since were coming from Bhavnagar were not under constant control and vigil of their truck owners and had an opportunity to make one or two local rounds in MandiGobindgarh to earn some extra money. The Sanjay Kumar Goyal used to arrange through his personal brokerage system certain transactions planning schedule on the same day or in one or two days gap. By these means, the drivers used to keep 50% of the freight and 50% was kept by the Sanjay Kumar Goyal. Thus, some of the entries may be coinciding on the dates because of this reason. (xiii) The allegation of revenue is also incorrect because they have presumed the abbreviation of names as per their own convenience and while recording statement dated 03.12.2015 (RUD-28) made Sanjay Kumar Goyal to write certain decoding of abbreviations as per their choice and dictation. The perusal of so calle....
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....as incorrectly presumed the decoding which is incorrect in considered opinion of the Sanjay Kumar Goyal. It is submitted that when the revenue did not have names of the parties even, what kind of investigation has been conducted by them. (xvi) The Show Cause Notice has analysed following 4 transactions in the Show Cause Notice which are alleged to be explained by Sanjay Kumar Goyal as goods sent to one set of people and invoice to the other:- S.No. Name of party allegedly received goods without bill Ref page and table of Order in Original Whether Show Cause Notice Issued 1. Satpal Table 1 to 4 at Page 5 to 8 No Show Cause Notice 2. Ashirwad Steel rolling mills Table 6 & 7 at page 14 to 16 No. Show Cause Notice 3. M/s Royal Table 8 to 11 at page 17 to 20 No Show Cause Notice issued 4. Balaji Table 13 to 16 at Page 22 to 25 No Show Cause Notice issued (xvii) Thus the so called buyers of goods without invoices were not even issued even Show Cause Notice nor were subjected to the penalty. (xviii) No case has been made out for imposition of penalty against M/s SST under Rule 25 Submissions on behalf of M/s Yashoda T....
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....7/- (iii) M/s A.R. Castings for Rs. 7,83,913/-. It is to be noted that none of the three party names mentioned here are part of 'Annexure G'. Therefore the present demand is beyond the investigations and there is no basis for proceeding against M/s YT in respect of Credit or parties which are not listed in main Annexure G. Thus, the present Show Cause Notice as well as impugned order is not maintainable. (viii) Although in Table 28 of Order in Original at Sr. No. 13 and 18 it shows that some statement was recorded of M/s Durga Multi Metals and Sri Vishnu Steels, however, as per para 1.35.1, they were shown File no. 26 (RUD 13 relating to M/s SST) was only shown and questions regarding same were put to him. No specific questions were put to them in relation to the M/s YT. In any case, it is admitted case of revenue that the said parties did not give any inculpatory statements. (ix) Even for recording statement misrepresentations were made in front of Sh. Jagdish Chander Bansal of M/s A.R. Castings and he was forced to reverse the credit under mis-representation of facts. His cross examination was allowed, however, he failed to come on first opportunity and no further opportuni....
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....egation. (iii) Secondly, at Page 76, table 33, a slip is reproduced allegedly recovered from Sh. Parveen Mittal to alleged transaction of purchase of goods without bills by M/s S.M. Steel and it is alleged that ShriManoj Marta in his statement dated 17.07.2013 (RUD-113) admitted that he purchased some goods without bills in cash transaction. Even in that slip there is nothing to show whether goods were supplied with bill or without bill. Further, the said entry on face of it looks like sale from S.M. Steel to Saggar Steels and not purchase by M/s S.M. Steels. Still further, the statement dated 17.07.2013 of ShriManoj Marta (RUD-13) nowhere admits any illegal purchase in respect of the entries mentioned in Table 33. Therefore, this extraction is completely false and in order to mislead the Hon'ble Adjudicating Authority. In any case, there is no connection of M/s SST with the said entry, therefore, the said entry or table 33 is of no consequence to the present case. (iv) Other than above, there is no specific allegation in the Show Cause Notice against Sh. Parveen Mittal and the adjudicating authority failed to bring on record any evidence against Sh. Parveen Mittal there ....
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....ted from 4 transporters which are mentioned at internal page 47 and 48 of the Order in Original. It is important to note that none of the transporters was asked any question regarding diversion of goods or unloading of goods at a different location than destination mentioned in the invoice. Or any question was put to them whether they transported goods without cover of invoices. There is no denial of actual transport of goods to the furnace units to whom invoices were issued. The transporter on the other hand confirmed payment of freight although in cash and also confirmed transport of goods .Therefore practically there is no evidence with the revenue for non-transport of goods. It is settled law that in order to allege paper transaction, the revenue must bring on record evidence from side of transporter that the goods were not actually transported. The revenue has grossly failed to adduce the said evidence in present case. Section 9D not complied with (ix) It is a settled law that the statement recorded by investigating agency shall pass through the test of Section 9D of the Central Excise Act 1944, before the same is regarded as admissible in evidence. The Adjudicating Auth....
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....ithout any goods from whom they took cheques and cash was returned to them after deducting their commission @1%. He also provided the names of Furnaces and the Rolling Mills involved therein. (vi) Sh Sanjay Kumar Goel also explained the entries made in the documents recovered during search. He also explained various abbreviations used in the documents. One such explanation has been tabulated at page 5 to 9 of the impugned order. These entries clearly establishes that cheque was received from furnace unit and cash was paid after deducting their commission @ 1%. The entries in File No 27 resumed during search were with respect to cash received from Rolling Mills against the goods supplied without invoice. (vii) Sh Sanjay Kumar Goel sent a retraction affidavit dated 16.01.2013 against his statement dated 15.01.2013. He was given an opportunity for tendering the evidence and statement on 18.03.2013 and on this date he, after seeing his earlier statement dated 15.01.2013, agreed with its contents. He again sent his retraction letter dated 19.03.2013, which was rebutted being not based on facts. (viii) Summons dated 28.04.2013 and 22.05.2013 were issued to Sh Raj Kumar Bansal, p....
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....sued by the dealers SST, SMM and YT against which no goods were received by them. (xvi) M/s Jogindra Castings Pvt Ltd and M/s Oasis Enterprises Private Ltd, both having common directors, were the major beneficiaries of the wrong availment of Cenvat credit. During the stock verification at M/s Jogindra Castings, shortage of 12.440 MT of finished goods was found. Sh Sanjay Gupta, director of said M/s Jogindra Castings admitted that the shortage is due to removal of goods without payment of duty and debited the duty involved. Sh Sanjay Gupta director in both the companies refused to offer any comments on the documents resumed at SST, SMM and YT but debited Rs. 45 Lacs in account of Jogindra Castings and Rs. 30 Lacs in the account of Oasis Enterprises. (xvii) Sh Jaswinder Singh Matharoo, Director in M/s C S Casting Pvt Ltd (another beneficiary) admitted that the entries of cheque and cash returned as mentioned the File No 26 resumed at SST against code 'CS' are related to M/s CS Castings. He also admitted that the amount of cheques shown given to SST was reflected in their ledger at a few days later date, which is a general trade practice in business of purchase of bills without ....
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....of having received only goods without invoice, establishes the modus operandi adopted by the appellants. (xxv) Further, the counsels on behalf of the Noticees in their defence submissions to the SCN have themselves admitted that "only two or three rolling units/ dealers have admitted to have purchased goods in cash", therefore the veracity of facts about other Noticees cannot be doubted. Thus in view of the above stated facts, no credence can be given to the belated retractions at the time of cross examination, which were bald retractions and have been made after so many years. (xxvi) It has further been contended by the counsels on behalf of the appellants that the documents shown to the appellants were only the photocopies and not in original and no reliance can be placed on the same as photocopies cannot be considered as credible evidence to prove the case against them. (xxvii) In this regard, submitted that Sh Sanjay Kumar Goyal, authorised signatory of STT, in his statement tendered before the investigating agency, accepted the fact of recovery of the incriminating documents as well as the fact that the same were prepared by him and also the fact that he destroyed the....
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....2 which records as under:- "Thereafter, the officers took consisting of three rooms at ground floor and first floor wherein the records of the said company was installed in Almirahs." A search of abovementioned premises was also carried out by the visiting officers in our presence and in the presence of Shri Avtar Singh in ordinary manner. The officer while carrying out through checking of the premises found a cloth bag of blue and black colour hidden in the bushes near green coloured water tank. 10. Further, Shri Sanjay Kumar Goel, during the course of adjudication was cross examined and has stated that all the statements were given under pressure and threat and also stated that no original documents were shown to me while recording my statement. 11. As, Shri Avtar Singh in his cross examination has stated that he was working on his table at office at the time of visit and he alone was present and there was no other person present in the godown. The godown is in 8 bighas area, there are four rooms and rest of the area is open. No recovery of bag was made in his presence, the visiting staff informed him recovery of bag from the godown, the visiting staff also did not....
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....re only. 16. Further, as per the statement of Shri Sanjay Kumar Goel who stated that the office at Motia Khan, Sai Market, Mandi Gobindgarh was not the office of M/s SST, but was in personal office of Shri Sanjay Kumar Goel who not only owns the said place and also physically occupied the same for his own use from where he did his own brokerage for sale of material and trading on personal account, apart from working as part time Manager for M/s SST. A copy of sale deed dated 22.07.2010 was also produced. In these circumstances, the documents recovered from the premises of third party cannot be relied upon to confirm the demand against the manufactures (furnace units) in the absence of any corroborative or tangible evidence as held by this Tribunal in the case of M/s Hindustan Machines (supra). We, further, find that the records maintained by third party containing details of various parties, cannot be connected to M/s SST as held by this Tribunal in the case of M/s Riyazo Plasto Pvt. Ltd. wherein this Tribunal observed as under:- "34. I find that the ledger book has been recovered from the father of the ShriSurinderRaizada who stated that he was maintaining personal rec....
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....tting on his desk and there was no other person present in the premises. Obviously, the visit was spontaneous without any prior intimation, therefore, Avtar Singh being alone in godown could not have thrown the said bag in bushes which were at the end of the 8 bigha premises. (ii) As per the panchnama itself the records of M/s SST was stored in Steel Almirah in the office premises. In any case, no businessman will make photocopies of records and keep it in bushes outside office area in the godown especially when there was no pre-information of visit of officers. (iii) Avtar Singh was in his office itself when the recovery was shown and he specifically denied any recovery of bag in his presence. (iv) He specifically stated that he was told by visiting staff that they recovered cloth bag from their premises. (v) He specifically stated that no personal search was offered by the visiting staff. (vi) The bundle of document shown are only photocopies which are later marked as RUD-13. (vii) The said bunch of papers were not sealed by the team. Even brief contents of "bunch of papers" were not noted in resumption memo. (viii) The statement dated 27.11.2012 (RUD 22) of ....
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....ers (which are highly suspicious) are only relied upon by the department. Statutory records have been ignored. (ii) Although, there is allegation of diverting goods to one person and invoice to other, the DGCEI could not find any excess or shortage of stock of inputs at the premises of M/s SST or of the alleged buyers of goods / invoices. (iii) The enquiries from the transporters did not yield any result rather they confirmed payment of freight. They did not confirm any diversion of goods and invoices which was alleged by the department. (iv) The persons alleged of buying invoices without goods were not enquired in detail as to if they have not actually received goods but only invoices, how did they manufacture their final product on which the department received Central Excise duty. (v) The persons alleged of buying goods without invoices were also not enquired as to how did they sell their final product manufactured out of such unaccounted inputs, their electricity consumption, manpower, capacity of manufacturing etc was also not examined. Most importantly, since they were not registered with the department claiming SSI exemption, no Show Cause Notice has been issued ....
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....lant has obtained only invoices for 4880.120 MT if the appellant has not purchased the raw material from M/s SST, the question arises from where he has purchased the remaining scrap. 27. On these issues, the Ld. Commissioner has not given any findings in the impugned order. Further, there is no allegation of procurements of raw-material received from the markets without any invoices by the furnace units. 28. During the course of investigation, a shortage of 12.440 MT of MS ingots was found in the premises of M/s Jogindra Casting Pvt. Ltd. which is 0.038% of the total production and the same was done on eye estimation basis. Therefore, the said shortages are not acceptable as no incriminating documents have been recovered from the business/residential premises of the furnace units. 29. In that circumstances, merely on the basis of the photocopies of documents whose original are not available which has been recovered from bushes in the godown of M/s SST, the allegation is not sustainable against the appellants. 30. In view of the above discussion, we find that there are several discrepancies in the investigation as well as in the adjudication. 31. As the witnesses who ....
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....00402 10400402 Casting Unit, Vill Chattarpura, Mandi Gobindgarh 7 Rajdhani Iron Products Pvt Ltd, Vill AACCR7955AXM001 8173316 8173316 Kumbh, Amloh Road, Mandi " Gobindgarh 8 J.S. Khalsa Steels Pvt Ltd, Amloh Road, AAAIC4221BXM001 9149129 9149129 Mandi Gobindgarh 9 A.N.J. Metals Recycling Pvt Ltd, AAECA5958QXM001 7438042 7438042 Amlour Road, Mandi Gobindgarh 10 Hind Alloys, Amloh Road Vill.Kumbh, Mandi Gobindgarh AADFH4996FXM001 7065897 7065897 11 Shree Ganesh Alloys, Vill Tooran, Ar Inh Road, Mandi Gobindgarh ABBFS1135NXM001 7716032 7716032 12 Shiva Castings Pvt Ltd, Tooran, Amloh Road, Mandi Gobindgarh AACCS3543HXM001 7248900 7248900 13 K.L. Alloys Pvt Ltd, GT Road, Mandi Gobindgarh AABCK3653MXM001 6583756 6583756 14 Northern India Steel Rolling Mills, Guru AABFNIS38LXM001 Ki Nagri, Maridi Gobindgarh 6115244 6115244 i 15 Neelkanth Recycling Pvt Ltd, Badinpur AASSN 799EXM001 Road, vill. Allour Khanna 627481 6274861 Document 2 -233- V(72)15/CE/ Adj/2/2017 16 Mathli Steels, Vill Kumbra, Nr Truck AAQFM9620EEM001 5019147 St....
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....at Credit Rules, 2004 read with Section 11AA of the Central Excise Act, 1944 and Section 174(2) of the CGST Act, 2017. (IRE) Ì confirm the demand of Rs. 48,357/-, against M/s Jogindra Castings Pvt Ltd., GT Road,.. Sirhind Side, Mandi Gobindgarh, under Section 11A of Central Excise Act, 1944 along with interest at appropriate rate under Section 11 AA of the Central Excise Act, 1944 read with Section 174(2) of the CGST Act, 2017. (iv) I order for appropriation of Rs. 45,00,000/-(Rs. Forty Five Lakh only) debited, voluntarily vide debit entry No. 06/02 dated 11.02.2013 and 07/02 dated 11.02.2013 and Rs.48,357/- debited vide entry. No. 81/43 dated 31.01.2013 in RG-23 A Part-II by M/s Jogindra Castings Pvt Ltd., GT Road, Sirhind Side, Mandi Gobindgarh, against the aforementioned demand against them. (v) I order for appropriation of Rs. 30,00,000-Rs. Thirty Lakh only) debited voluntarily on 11.02.2013 in RG-23 A Part-II by M/s Oasis Enterprises Pvt Ltd., Tahvara Road, Mandi Gobindgarh, against the aforementioned demand against them." (vi) I impose penalties, mentioned against their names in colmn 5 in Parą 5(i) above, upon the Noticees ....