TaxTMI 
TaxTMI 
2022 (5) TMI 473
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....468-472/2018 dated 5.11.2018 4359 dated 9.6.2016 3. The facts in brief are as follows: Appellants Shri S.K. Lakhotia, Sh. Sarjit Singh and Sh. Hukum Singh Rawat are the employees of M/s. Rathi Bars Ltd. and appellant Sh. Durga Prasad Sahu is the commission agent working for the said company. M/s. Rathi Bars Ltd. is engaged in manufacturing of MS TM Bars and as such are holders of Central Excise Registration. On the basis of intelligence gathered by DGCEI New Delhi, that the premises of a company named M/s. Bhiwadi Rolling Mills were searched on 6.9.2012. After conducting the physical verification of the stock and perusing the documents recovered from the premises including the hard disk of the desktop, print outs of the sale register and two laptops as were recovered from the residence of Director of M/s. Bhiwadi Rolling Mills along with certain documents recovered from a car found parked in the said residential premises that Department formed an opinion of clandestine removal of the goods by said M/s. Bhiwadi Rolling Mills. During further investigation, Department observed that M/s. Rathi Bars Ltd. is one of the major raw material supplier to the said M/s. Bhiwadi Rolling Mil....
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....ground of violation of section 9 D of the Central Excise Act. With these submissions, learned counsel has prayed for the order under challenge to be set aside and appeals under consideration to be allowed. Learned Counsel has also laid emphasis upon the findings of Tribunal Chandigarh Bench in an appeal no. ST/60304/2017 in the case of Col. Randhir Singh Malik vs. CCE Rohtak as was decided vide Final Order no. 60913/2021 dated 23.08.2021 wherein penalty has been waived of by the present Tribunal Chandigarh Bench, in view of a discharge certificate to have been issued in favour of the main party. 6. While rebutting these submissions, learned DR has laid emphasis upon the findings in para 10 of the order under challenge wherein Commissioner (Appeal) has given specific reason for imposition of the penalty upon the present appellants holding that all of them knew and had reason to believe that they were dealing with the goods which were liable for confiscation for want of deposit of duty for the same. Hence, the confirmation of penalty on these appellants under rule 26 of Central Excise Rules 2002, is impressed upon as being reasonable and justified. Laying emphasis that there is no i....
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....ing Mills P Ltd. Bhiwadi as mentioned in the ledger print in the books of accounts of M/s Bhiwadi Rolling Mills P Ltd. under the ledger head of Sabu on which he had already put his signature in token of correctness. Statement of Shri Sarjit Singh, authorised signatory M/s Rathi Bar Ltd. and Rathi Special Steel Ltd. was recorded before the Sr. Intelligence officer DGCEI, New Delhi on 7.10.2013 wherein he stated that his job in the factory was to deal with the matters relating to Central Excise and VAT returns and other regulatory permissions; that he was responsible for purchase and sale of raw material & finished goods; that on receipt of bills from receipt and dispatch section he supervised the entry in RG1 register & Form IV register and on the basis of RG-1 register, he supervised the preparation of ER-1 returns and Vat returns; that he directly reported to Director of the company by sitting in the factory premises. He further stated that he was Manager & authorised signatory and looking after the Central Excise working and monitor the dispatch of finished goods on behalf of Directors of M/s Rathi Bar Ltd. and M/s. Rathi Special Steel Ltd. SP-7, RIICO Industrial Area, khoda,....
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....n imposed upon the present appellants, they being the employee / commission agents for the company. But the allegations of clandestine removal are serious allegations which cannot sustain unless there is clinching evidence. Hon'ble Apex Court in the case of Continental Cement Company vs Union of India - 2014 (309) ELT 411 (All.) has held as follows: "12. Further, unless there is clinching evidence of the nature of purchase of raw materials, use of electricity, sale of final products, clandestine removals, the mode and flow back of funds, demands cannot be confirmed solely on the basis of presumptions and assumptions. Clandestine removal is a serious charge against the manufacturer, which is required to be discharged by the Revenue by production of sufficient and tangible evidence. On careful examination, it is found that with regard to alleged removals, the department has not investigated the following aspects: (i) To find out the excess production details. (ii) To find out whether the excess raw materials have been purchased. (iii) To find out the dispatch particulars from the regular transporters. (iv) To find out the realization of sale proceeds. (v) To find out fini....
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....249 (Tri.-Del.) and CCE & ST, Ludhiana Vs. Anand Founders & Engineers - 2016 (331) ELT 340 (P&H). It stand held in all these judgements that the findings of clandestine removal cannot be upheld based upon the third party documents, unless there is clinching evidence of clandestine manufacture and removal of the goods." 12. Further, it is observed from the statements as mentioned above that Shri Durga Prasand Sabu, though deposed about sales to have been made to M/s. Bhiwadi Rolling Mills through M/s. Rathi Bars Ltd., however, there were few such consignments wherein the sales were made from M/s. Rathi Special Ltd. also. Apparently and admittedly there is no evidence of bifurcating the said consignment and bifurcation of the proposed / confirmed demands only on M/s. Rathi Bars Ltd. This lacuna on part of the investigation also hits the very basis of allegations and the demand confirmed against the appellant. In absence of the said corroborating evidence and in the light of apparent fact that the appellants have time and again been requesting for the witnesses to be cross examined but the request had been turned down, it is clear that violation of section 9 D of the Central Excise R....