TaxTMI 
TaxTMI 
2022 (7) TMI 208
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....pur. iii) Office of M/s Swastik Udyog Ltd., and residence of Sh. Hemant Sharma, Director at 84, Siddhipuram, Indore. iv) Residence premises of Sh. Dinesh Sharma, Director, 2, Mahaveer Nagar, Dewas. v) M/s Vipul Trading Co. 38, Kothi Road, Dewas. vi) M/s Srikrishna Food & Beverages Ltd., E-99, Industrial Area, Dewas vii) Residential premises of Sh. Ganpat, Machine Operator of M/s NTPL, 11, Kaanch Building, Jeevan Vihar colony, Pithampur. viii) Business premises of M/s Fakhri Steel & Iron, Indore 3. During the search some incriminating documents were recovered. In the search at the residential premises of Sh. Ganpat, Machine Operator of NTPL, resulted in recovery of a computer. This computer had the data in respect of sales made by NTPL during the period 01.04.2009 to 23.11.2009 as well as partywise ledger for the same period. When this sales data was compared with the information in respect of clearances affected by NTPL (received from customs), a huge difference was noticed. On further scrutiny of documents which were recovered during search, it appeared that NTPL have been submitting information in respect of purchase, sales....
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.... M/s NTPL have procured term loan and cash credit limit from State Bank of India and therefore they were required to file periodical stork statement of their transactions to the bank authorities. As per these statements during period March, 2009 to Oct. 2009, M/s NTPL had received total raw material of 7157.238 MT valued at Rs. 22,03,66,150/-. The total pipes manufactured was CR Pipe 3081.64 MT valued Rs. 11,75,00,595+H.R. Pipe 3764.64 MT valued Rs. 13,01,90,349/- and clearances were CR Pipe 2698.13 MT valued Rs. 10,69,40,603/- H.R. Pipe 3415.97 MT valued Rs. 12,17,01,904/- 8. As per information received from the Appraiser, during period 27.03.2009 to 23.11.2009 M/s NTPL had cleared 509.73 M.T. of M.S. pipes, whereas, as per their own ledger actual clearance of pipes was 6532.19 M.T. valued at Rs. 24,46,47,724/-. This indicated that that M/s NTPL were engaged in massive evasion of Custom duty. 9. Scrutiny of seized documents revealed that while M/s NTPL had cleared goods to some genuine purchasers on payment Customs duty, they had also cleared goods on invoices to following six firms, on which they have not paid Cjustoms duty: a) M/s Chamunda Iron & Steel P. Ltd. 256....
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....quently placed under seizure vide panchnama dated 15.12.2009. A separate show cause notice was issued with regard to the seized goods of M/s Fakhri Steel & Iron being show cause notice No. IV(6)INV/RUI/09-15591 dt. 19.05.2010. 13. Based on the aforementioned facts and circumstances, Revenue issued show cause notice dated 07.08.2013 to M/s NTPL, its directors and others, including this appellant, alleging inter alia that M/s NTPL, a SEZ unit was engaged in clandestine clearance of part of their production and accordingly duty was demanded from them and penalty was proposed on others including this appellant for alleged clandestine receiving and storage of goods, on which appropriate custom duty was not paid, allegedly removed by M/s NTPL clandestinely. 14. This appellant contested the show cause notice and filed detailed reply inter alia stating that the goods found and seized from his premises have been purchased from the open market for which payment was made through banking channels. He also led documentary evidence in the form of purchase invoices and ledger account in support of stock in hand found at the time of search, and also requested for release of the goods. It was....
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....ain incriminating documents like handwritten kachhi diaries were recovered, which appeared showing the details of sale of goods by the appellants without raising bills. Opportunities were given to the appellants to explain the same, however, they did not submit any information in this regard. (e) As per the amended Section 28 of the Customs Act, 1962 show cause notices issued prior to 06.07.2011 by officers of Customs, which would include officers of Commissionerates of Directorate General of Central Excise Intelligence and similarly placed officers stand validated since these officers are retrospectively recognized as 'proper officers' for the purpose Sections 17 and 28 of the said Act. As far as judgement of Hon'ble Supreme Court in the case of M/s Canon India Pvt. ltd., it is submitted that department has filed the review petition before the Hon'ble Supreme Court. (f) That on the issue of cross-examination, the following case laws are relied by the Revenue:- i) N. S. Mahesh vs. Commissioner of Customs, Cochin -2016 (331) ELT 402 (Ker.) ii) Surjeet Singh Chhabra vs. UoI -1997 (89) ELT 646 (SC) iii) Kanungo & Co. vs. Collector of Custom....
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....etted in clandestine removal of goods from the factory of NTPL, without first examining and giving opportunity to cross examine these witnesses. This is contrary to the provisions contained under section 138B of the Customs Act1962 (which is pari pasu of Section 9D of CEA 1944) and the law is settled through various judgements of higher judiciary. Appellant respectfully relies on the following case laws ;- I) 2002(143) ELT 25(SC) Arya Abhushan Bhandar vs Union of India II) 2016(340) ELT 67(P&H)- Jindal Drugs Pvt Ltd versus Union of India III) 2016(334) ELT 302(Guj) Manek Chemicals Pvt Ltd versus Union of India B. Because learned Commissioner has erred in holding the goods seized from the appellants premises as liable to confiscation, on the mere assumption that the same might have been removed from the factory premises of M/s NTPL, brushing aside the appellants claim of ownership of the goods based on tangible evidence in the form of purchase invoices and ledger account showing payments made to the suppliers towards price of the purchased goods. C. Ld Commissioner's finding in para 85 of his Order-in-Original are as under- ―85 duri....
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....m of the grounds on which it is proposed to confiscate the goods or to impose penalty. Appellant having purchased the goods using in stock, stored in his shop premises at the time of search, being the lawful owner ought to have been served a notice asking him to explain as to why the goods should not be confiscated. However the department without comparing the stock in trade as per his books of account at the time of seizure, and without serving him any notice proposing confiscation of the goods, has subsequently confiscated the goods, which in respectful submission of the appellant is liable to be set aside as being contrary to the provisions of section 124 of the customs Act 1962. 23. Without prejudice to the appellants submission that the goods seized from his shop premises are his lawful possession and should be restored to him and that he is not concerned with the evasion of customs duty if any on the part of noticee No 1-M/s NTPL, learned tribunal may kindly appreciate that in order to allege that Appellant abetted with NTPL in evasion of duty, the department has heavily relied on the statements of third parties recorded under threat and coercion, at the back of the appell....
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....N, that one Sh. Govind Mittal said to be the owner of vehicle No. MP09K C -5170 in his statement dated 19.02.2010 allegedly stated that he transported steel pipes from NTPL to Fakhri Steel on 01.05.2009, 06.05.2009 and 09.06.2009, and at the time of transportation no document except bilty was given to him. However, the chart under para 8 of the SCN, compiled on the basis of the data of duty paid clearances from SEZ, and entries in outward register recovered during search at NTPL shows that on 01.05.2009 as well as on 09.06.2009 the same vehicle transported goods which were cleared on payment of duty (COPOD). When as per the relied upon record, the goods are duty paid, the same are not offending goods liable to confiscation and the question of Appellant abetting NTPL in evasion of duty and consequential imposition of penalty does not arise. 27. Ld Commissioner-respondent in passing order of confiscation of the goods seized, has erred in assuming that the goods recovered and seized from the Appellant's premises are the very same goods as have been cleared without payment of customs duty from the factory premises of NTPL, without there being any tangible evidence as- I) Th....
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.... MISC 5945/2021of Gopal Gupta Vs. Principal Additional Director General, DRI, issued notice to the Department and stayed proceedings initiated vide SCN dated 26.09.2019 in view of the petitioners challenge to the authority of DRI officers under section 104, 100/102,105,110 and 124 of the Customs Act 1962, following the judicial precedent of the verdict of Hon'ble Supreme Court in the matter of M/s Canon India Pvt. Limited. Accordingly, he prays for allowing the appeal with consequential relief. 31. Having considered the rival contentions, I find that the goods under dispute are not the specified goods under Section 123 of the Customs Act. In such facts and circumstances, when admittedly it is a case of town seizure, the onus lies on Revenue to prove that the goods/ pipes lying in the premises of this appellant have been received by him in a clandestine manner from SEZ unit, on which Custom duty have not been paid. The General Rule is that the goods which are available in the open market, are presumed to have suffered the duty. If it is alleged by Revenue that the goods lying or found in the shop/godown premises of the assessee are not duty paid, it is the onus on Revenue to esta....