TaxTMI 
TaxTMI 
2023 (5) TMI 745
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..../A, Manav Mandir Road, Kalmeshwar Road, Village Yerla, District Nagpur under the provision of Section 11A of the Central Excise Act, 1944 invoking the proviso thereto. 2. I order recovery of the aforesaid amount alongwith interest at the appropriate rate from the Noticee No. 1 under the provisions of Section 11AB of Central Excise Act, 1944. 3. I impose a penalty of Rs. 59,79,467/- on Noticee No. 1 under the provisions of Section 11AC of the Central Excise Act, 1944 which shall stand reduced to 25% under the provisions of Section 11AC of the Central Excise Act, 1944, if paid by the Noticee No. 1 alongwith duty confirmed and interest thereon within 30 days of receipt of this order. 4. I impose a penalty of Rs. 59,79,467/- on Noticee No. 1 under Rule 25 of Central Excise Rules, 2002 for contravention of various provisions of Central Excise Act, 1944 & Central Excise Rules, 2002. 5. I impose a penalty of Rs. 15,00,000/-on Noticee No. 2 under Rule 26 of Central Excise Rules, 2002 for knowingly and deliberately abetting Noticee No. 1 in clandestine removal of excisable goods with intent to evade payment of duty. 6. I impose a penalty of Rs. 1....
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....tral Excise Rules, 2002, should not be demanded and recovered from Noticee No. 1 under Section 11A of the Central Excise Act, 1944, by invoking extended period of 5 years under proviso to Section 11A of the said Act. • Interest at the appropriate rate on the above duty amount should not be charged and recovered from them under the provisions of Section 11 AB of Central Excise Act, 1944; • Penalty should not be imposed upon them under the provisions of Section 11 AC of Central Excise Act, 1944, 2002, for and Rule 25 of Central Excise Rules, 2002, contravention of various provisions of law as mentioned supra. • Appellant 2 to show cause as to why penalty under Rule 26 of Central Excise Rules, 2002, should not be imposed upon him for his role played in this case as a whole or at various stages for receipt of excisable goods by receiving the same without cover of Central Excise invoices, in acquiring possession of, in transporting, in removing, in depositing or dealing with the excisable goods, knowing and having reason to believe that the goods in question were liable to confiscation under the Central Excise Act, 1944 or Central Excise Rules, 200....
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....ls, finished goods, production, clearances, opening and closing stock, etc. there is no evidence either in the form of statement of officers of the appellants or GAPL or any other corroborative evidence to show that the appellants had manufactured and cleared total quantities mentioned in DMs as well as mentioned in the excise invoices issued later on. The allegation of clandestine removal is based solely on DMs and to prove the said allegation, Revenue has again relied solely on DMs. • It is trite that if an allegation is made on the basis of a document, the same document cannot be solely relied upon without any other corroborating evidence to prove the allegation. Therefore, the finding of clandestine removal of MnO is perverse and without any basis. • R.A. Castings Pvt. Ltd. [2009 (237) ELT 674 (T)] Affirmed by the Hon'ble High Court at [2011 (269) ELT 337 (ALL) Maintained by the Hon'ble Supreme Court in [2011 (269) ELT A108 (SC)] • SRJ Peety Steel Pvt. Ltd. [2015 (327) ELT 737 (T)] • J.J. Re-Rollers [2017 (348) ELT 99 (T)] • Kamboj Ispat P. Ltd. & Shri Chatar Singh [2016 (1) TMI 560] • The inv....
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....llants can be found. • Payment to the transporter was made on weekly basis and the total amount of the payment made for a particular week co-relates with the total quantity of the DMs in that week. All the payments of the transportation charges incurred were mentioned in the transport ledger of the appellant company. Also, the total quantity as per transporter bills. matches the total quantity either as per DMs or as per invoices issued, but not both. Hence, the goods have been transported only once. • The aforesaid facts prove beyond doubt that the quantities covered by the DMs were alone transported and no quantities were cleared under the central excise invoices issued subsequently and that the payment of duty for the entire quantity has already been made. This fact is also supported by the affidavit of the transporter. However, the Commissioner ignored the affidavit of the transporter without giving any finding and mechanically confirmed the demand in the present case. • No investigation was conducted by Revenue at the Appellant 2 end and MOILS end. • The appellants have consistently stated that due to availability of limited ....
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....f Manganese Ore, it would be impossible for the appellants to produce 1233.673 MTs of MnO. Under similar circumstances, CESTAT in Hiren Aluminium Ltd. [2009 (245) ELT 386 (T)], set aside the demand. • The allegation that as per P&L account and Balance Sheet for FY 2006- 2007, it appears that appellants have sold 231.335 MT of MnO under the garb of MnO2 without payment of duty by availing the benefit of exemption Notification No.6/2002 dated 1.3.2002, is incorrect and perverse. The demand is on 709.336 MT and not on 231.335 MT of MnO. Further, the duty demand is not based on the profit and loss account, but based on DMs. Therefore, the aforesaid allegation is misleading and irrelevant. • The Revenue has further alleged that on scrutiny of auditors report and balance sheet, it appears that appellants have shown trading purchase of 197.060 MT of Manganese Ore and sale of 197.060 MT of Manganese Ore but no records maintained by the appellants show that there is trading purchase of Manganese Ore. The appellants had purchased Manganese Ore from MOIL, however, the said Ore was directly consigned to GAPL. In other words, the said Manganese Ore did not physically e....
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.... There are instances where GAPL has supplied manganese ore to the appellants. On receipt of such ore in the factory, the entries that are made in the Raw Material Receipt Register clearly describe the ore not only with its number but it is also prefixed by "GAPL". Thus, in the Record No.34 seized by the Central Excise department from the appellants' factory under Panchnama dated 4.3.2010, there are entries of receipt of "GAPL 1110" and "GAPL 1111". Total quantity of 1110 and 1111 grades of Manganese Ore received from GAPL for job-work during 2008-09 was 218.810 MTs. From this quantity of ore, the appellants had manufactured MnO on job work basis and had returned the same to GAPL. All the DMs under which MnO manufactured on job work basis was cleared, clearly show the description as "MnO 1110" and "MnO 1111". These DMs represent the MnO manufactured on job-work basis. The total quantity represented by these DMs is 144.797 MTs (refer page 396 & 397 of Vol-II). • The job-work billing has also been done from the appellants to GAPL during 2008-09, clearly establishing that this material was indeed manufactured by the appellants for GAPL on job-work basis. On return of ....
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.... as 2255.604 MTs and total sale as 2620.604 MTs. While denying the allegation of suppression of production and clandestine removal, it is submitted that the figures of production and sale as shown in the balance sheet are not of MnO alone but are combined production and sale of MnO and MnO2. This fact is certified by the appellants Chartered Accountant wherein the figures of production and sale of MnO and MnO2 have been separated and the values thereof are separately indicated. It can now be seen that the standalone production and sale figures for MnO as per the balance sheet match those as per the DSA. The Commissioner has rejected the said certificate without any cogent reason and without appreciating the fact that the same Chartered Accountant who had prepared the auditor's report had issued the certificate clarifying the bifurcation of production and sale shown. • The Commissioner has also given a finding that there is manipulation of financial and Central Excise records which is based on the figures of opening stock, production, clearance and closing stock as shown in the balance sheet vis-à-vis those shown in the Daily Stock Account for the FY 2007-200....
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....a submitted by the Appellant have been checked the discrepancies in the said statements and documents point out that these documents cannot be correlated. • It is humbly requested to the Hon'ble Bench that Appeal may be decided considering the above submissions. 4.1 We have considered the impugned order along with the submissions made in appeal, during the course of arguments and the written submissions filed by both the sides. 4.2 Impugned order records the following findings "The main issue to be decided in the instant case is:- 1) Whether the Noticee No. 1 by acts of omission and commission, had manufactured and removed 3361.472 MT finished products i.e. MnO valued at Rs. 5,09,00,262/- clandestinely without cover of proper Central Excise Invoices and without maintaining the statutory records and without payment of Central Excise duty amounting to Rs. 60,22,723/- (BED Rs. 58,53,738/- + Ed. Cess Rs. 1,17,075/- + S&H Cess Rs. 51,911/-), during the period from 05.12.2006 to 14.10.2009 in contravention of the provisions of Rule 4, 6, 8, 10, 11 and 12 of the Central Excise Rules, 2002 by suppression and mis-representation of the facts. ....
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....ral Excise invoices in respect of clearances made under three or four delivery challans. It is observed that the total quantity of clearances under the delivery challans and that cleared on payment of duty was the same. 38.3. I, however, find that the so called practice followed by the Noticee No. 1 in the initial stage of operation in 2005 for clearance of goods & issuance of invoice thereof cannot be taken into consideration while deciding the issue in hand, as the same was out of period of demand. Also, under any circumstances such casual plea on behalf of manufacturer is totally unacceptable as issuance of invoice for clearance of goods is a very basic requirement of Central excise formalities and Noticee no 1 cannot argue that they were ignorant about the same though they were very well aware about the SSI exemption available to them, its limit and due date of payment of duty etc. this is very casual plea and is nothing but an after thought on part of the Noticee No. 1. It is therefore not tenable and not acceptable. Financial year 2006-07:- 38.4. I observe that Noticee No. 1 vide their submissions dated 03.09.2010 has contended that for the Financia....
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....tory Incharge of Noticee No. 1, in their statement in no uncertain terms have admitted that they cleared MnO only from their factory during the period December, 2006 to March, 2007 to the Noticee No. 2, under Delivery Memo, but inadvertently and wrongly mentioned manganese Dioxide instead of MnO on such Delivery memo. Hence the contention of the Noticee no 1 that the clearance of 71.400 MT of grade DB 2320 mentioned under DM No 168 & 169 both dated 14.12.2006; 184 dated 16.12.2006 and 185 dated 19.012.2006 is actually for clearance of Manganese Ore supplied by MOIL is afterthought & therefore, is not acceptable. Financial year 2008-09 & 2009-10:- 38.8. I also observe that Noticee No. 1 has contented that in the Financial year 2008-09 & 2009-10, they received DB 1110 and DB 1111 higher grade Manganese Ore from M/s. Goodearth Agro Chem Pvt. Ltd. on job work basis & are actually returned by the Noticee No. 1 after completion of job work to M/s. Goodearth Agro Chem Pvt. Ltd. 38.9. I however find that the Noticee No. 1 has neither produced statutory records, permissions etc. regarding receipt of such raw materials, manufacture of goods out of such raw material....
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.... cleared as per the DSA is much more that the quantity covered by the DMs as it is seen from the comparison of total quantities as per DSA and that cleared under DMs in the months of May, 2008, December, 2008 and September, 2009. 38.14. I however on perusal of Annexure B and Annexure C to the SCN find that the Noticee No. 1 have issued 17 Delivery Memo for clearance of 131.140 MT in April, 2008, 5 Delivery Memo for clearance of 36.156 MT in August, 2008, 9 Delivery Memo for clearance of 74.232 MT in October, 2008 & 35 Delivery Memo for clearance of 190.609 MT in June, 2009. I also find that these delivery memos very issued on different dates in the corresponding months. The period of issue is also different i.e. April, 2008, August, 2008, October 2008 & also June, 2009. 38.15. Since, the Noticee No. 1 has persistently taken a plea that they removed the goods on delivery memo only & at the end of month & subsequently they issued the Invoices for the total quantity of goods cleared in the month under delivery memo & paid central excise duty on such cleared quantity, I in order to ascertain the factual position & correctness of the plea of Noticee No. 1, have careful....
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.... An illustrative entry is evidenced as under:- 38.18. It is observed that on dated 02.05.2008, the Noticee No. 1 in their DSA has shown total clearance of 9.00 MT of MnO whereas, I also find that on the same date i.e. 02.05.2008 the Noticee No. 1 has issued Tax Invoice No. BSS/08-09/3 dated 02.05.2008 indicating clearance of 9.00 MT of MnO to Noticee No. 2 on payment of Central Excise duty. The tax invoice also indicates that the said goods were transported through vehicle no. MH-22 H- 0181 & the time of removal of said goods have been indicated in the tax invoice as 16.00 hours. Thus, the entry for clearance of 9.00 MT of MnO on 02.05.2008 is clearly corroborated by issuance of tax invoice no. BSS/08- 09/3 dated 02.05.2008 issued by Noticee No. 1. 38.19. However, I further find that the Noticee No. 1 has also cleared 10.26 MT and 5.458 MT of MnO [totally weighing 15.718 MT of MnO] vide Delivery Memo No. 18 and 19 both dated 02.05.2008 through vehicle no. MH-40- 4562 to Noticee No. 2. but, no entries of such clearance have been recorded in the DSA or tax invoice by Noticee No. 1. 38.20. Thus, it is crystal clear that the Noticee No. 1 has not only cl....
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.... the payment of Central Excise duty on clearances of MnO by them cleared on Delivery Memo is revenue neutral is of no use to them as they have suppressed the procurement of goods and production of finished excisable goods (MnO) and clandestine clearance of such goods under delivery memo and have also miserably failed to discharge the Central Excise duty liability on such clearances. The duty liability was on Noticee No. 1 and they ought to have discharged it willfully at the time of clearance of such goods which they have failed to do so. 38.24. Similarly, though the Noticee No. 1 have contended that in the Financial year 2009-10, the Noticee No. 1 have received DB 1110 and DB 1111 higher grade Manganese Ore from M/s. Goodearth Agro Chem Pvt. Ltd. on job work basis and the total quantity of 263.714 MT of MnO mentioned in document No. 14 of their submission are actually returned by the Noticee No. 1 after completion of job work to M/s. Goodearth Agro Chem Pvt. Ltd., I held that the Noticee No. 1 has failed to produce statutory records prescribed under Rule 16 A of Central Excise Rules, 2002 so as to substantiate their claim of manufacture of MnO in 2009-2010 out of raw mate....
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.... intent to evade payment of Central Excise duty on clearance of such goods. 38.27. I also find that the Noticee No. 1 have contended that as regards suppression of production of 75.862 MT of MnO and clandestine clearance of 302.800 MT of MnO, the figure of production and sale of MnO in the Balance sheet are not of MnO alone but are combined production and sale of MnO and MnO2, which was certified by their Chartered Accountant in their document No. 18, submitted with their written submission. However, from perusal of the Auditor's report and the Balance sheet for the year 2006-07, I find that production and sale pertains to MnO only & therefore the contention of the Noticee No. 1 to that extent is not acceptable. 38.28. It is observed from the written submission made by the Noticee No. 1 dated 03.09.2010, wherein it is interalia stated that the inflated figure of production shown in the Balance sheet for the year 2007-08, they themselves admitted that it was for correcting the inadvertent mistake of showing less opening balance for the said financial year. 38.29. The Noticee No. 1 in their reply dated 03.09.2010 has contended that all payments to the T....
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..... I therefore find that the above case laws referred by Noticee No. 1 are of no use to them as are not applicable in the instant case. 39.3.The Noticee No.1 has also placed reliance on the following case laws:- ALTOS INDIA LTD. versus COLLECTOR OF CENTRAL EXCISE, NEW DELHI, 1996 (85) E.L.T. 147 (Tribunal) The above case law is not applicable in the instant case as the facts of the case on hand are different from the facts of the case mentioned supra. In the case law cited by the Noticee No.1, Hon'ble CESTAT has held that mere pre-dating or ante-dating of the gate passes without any other independent evidence, does not mean that there had been double removals, whereas, in the instant case, documentary evidence in the form of delivery memo substantiating clandestine clearance of goods without payment of duty is on record. As discussed above, it is on record that the Noticee No. 1 used to procure raw material and thereafter did not account for such raw material in the books of accounts. It is also established, as discussed, herein above that, excisable goods (MnO) manufactured out of such unaccounted raw materials was also never accounted for in the stat....
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....stigation conducted by the Department. Under the provisions of proviso to Section 11A (1), the period of limitation for recovery of duty is five years 'where such duty has remained non-levied, non-paid, short-levied or short-paid or has been erroneously refunded by reason of fraud, collusion, willful misstatement or suppression of facts, or contravention of the relevant provisions of law with intent to evade payment of duty'. In this case, I note that the Noticee No.1 has not only failed to pay the Central Excise duty but it is observed that the Noticee No. 1 also has suppressed procurement of raw material from the department and suppressed the quantity of excisable goods i.e. MnO manufactured and cleared without payment of duty out of such raw material, from the department & such clandestine activity was feebly attempted to be justified by the Noticee No. 1 in the guise of job work which is not tenable. Therefore I held that in the instant case extended period is applicable under proviso to Section 11A (1) of the Central Excise Act, 1944. 40.3. In this regard, I rely on the decision of the Larger Bench of the Hon'ble Tribunal in the case Mermaid Marine Product....
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....oods is sufficiently discharged if the department furnishes prima facie proof of the goods having been smuggled and burden then shifts to the person concerned to discharge on the principle underlying Section 106 of the Evidence Act. The Tribunal further held that the department is not required to prove its case with mathematical precision. 40.7. I further observe that the Hon'ble Tribunal in the case of M/s Siemens Ltd. VS. CCE [reported in 1994 (70) ELT 305] has held that in case of clandestine removal, the department will not be able to produce direct evidence. Such removal can be gathered from the circumstances. The principle underlying section 106 of the Evidence Act, the burden to establish those facts which are within the knowledge of the Respondent, is always on the Respondent concerned and if that respondent fails to establish or explain those facts, an adverse inference can be raised against him. 40.8. I also place reliance on the decision of the Hon'ble Tribunal in the case of C.C.E., Madras v. Madras Chemicals, 1986 (24) E.L.T. 308 (T) wherein the Hon'ble Tribunal has held that "It is therefore the duty of court to sift and scrutinize the eviden....
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....and removed their finished products i.e. Mno clandestinely without cover of proper Central Excise Invoices and without maintaining the statutory records and without payment of Central Excise duty during the period from 05.12.2006 to 14.10.2009 and contravened the provisions of Rule 4, 6, 8, 10, 11 and 12 of the Central Excise Rules, 2002 by suppressing and mis-representing facts. 42.2. It is also observed that the Noticee No.1 had deliberately suppressed the fact with the sole intention of evasion of Central Excise duty; therefore I find that the Noticee is liable to pay penalty under the provisions of Section 11 AC of Central Excise Act, 1944 read with Rule 25 of the Central Excise Rules, 2002. 42.3. As I have already upheld the allegation regarding the offence committed by the Noticee No.1 and as the goods have been cleared clandestinely without payment of duty, the imposition of penalty under various rules read with Section 11AC is sustainable in law by applying the ratio of the judgment of the Hon'ble Supreme Court in the case of Sony India Ltd., Vs CCE, Delhi reported in 2004 (167) ELT 385 (SC) which upheld the imposition of penalty under section 11AC equ....
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....as interalia pleaded that all their customers for MnO and MnSO4 are registered with Central Excise and they will get Cenvat Credit for excise duty charged by them on their product. Similarly they will get Cenvat Credit on purchase of MnO. Hence, there is no motive / benefit / desire on their part to procure MnO without Central Excise duty being charged on it & hence neither any act of commission or omission. with regard to removal of MnO on their part. The Noticee No. 2 has further taken plea that penalty under Rule 209A of erstwhile Rules and Rule 26 of present Rule is not imposable in absence of proposal to confiscate any excisable goods in the Show Cause Notice or confiscation ordered or upheld and they also reliance on various Tribunal judgements 43.2 I, find that the fact of clandestine removal of excisable goods by Noticee No 1 to noticee 2 with intent to evade payment of central excise duty has been established beyond doubt. Such procurement of goods by Noticee No 2 is also not reflected in their books of accounts. Thus Noticee No 2 ahs knowingly not followed the Central Excise procedures. It is thus immaterial as to whether the Cenvat Credit was admissible to Notic....
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.... central excise duty was well within the knowledge of Noticee No. 3. The Noticee No. 3 was therefore very much aware about such unlawful activity and its consequence leading to confiscation of such goods being cleared without payment of duty. I also find that while proposing penalty on Noticee No. 3, it has been specifically alleged in the Show Cause Notice that the goods in question were liable for confiscation under Central Excise Rules, 2002. I find that the Noticee No 3 is therefore liable for penalty under Rue 26 of Central Excise Rules 2002. 44.2 In this regard, I place reliance on the decision of the Hon'ble CESTAT in the case of Sita Cement vs CCE reported in 2003 (153) ELT 204 (Tri) wherein it was held that penalty was rightly imposed on the Director with whose consent and knowledge clandestine removal was carried out. 44.3. In the case of Supreme Petroleum Vs CCE Vadodara reported in 2006 (194) ELT 323 (Tri. Mum) the Hon'ble Tribunal has upheld the imposition of penalty under Rule 26 of CER 2002 on the accountant and the Proprietor of the appellant unit in as much as the transaction had taken place within their knowledge and they were directly connec....
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....O alleged to be cleared by the appellants 602.596 1490.838 752.787 Total (A-B⇒C) 602.596 1490.838 752.787 Qty. of MnO on which duty is paid by the appellants (D) 644.354 1523.102 991.130 Excess Qty. on which duty is paid by the appellants 41.758 32.264 238.343 4.5 Before we proceed further it is necessary to reproduce the relevant provisions of the Central Excise Rules, 2002 as they existed during the period of demand: Rule 4: Duty Payable on removal (1) Every person who produces or manufactures any excisable goods, or who stores such goods in a warehouse, shall pay the duty leviable on such goods in the manner provided in rule 8 or under any other law, and no excisable goods, on which any duty is payable, shall be removed without payment of duty from any place, where they are produced or manufactured, or from a warehouse, unless otherwise provided: Rule 6: Assessment of duty The assessee shall himself assess the duty payable on any excisable goods. Rule 8: Manner of Payment (1) The....
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....tral Excise, as the case may be, in the special facts and circumstances of each case. (5) The owner or working partner or the Managing Director or the Company Secretary or any person duly authorised for this purpose shall authenticate each foil of the invoice book, before being brought into use. (6) Before making use of the invoice book, the serial numbers of the same shall be intimated to the Superintendent of Central Excise having jurisdiction. Rule 12 - Filing of Return (1) Every assessee shall submit to the Superintendent of central Excise a monthly return in form specified by notification by the Board, of production and removal of goods and other relevant particulars, within ten days after the close of the month to which the return relates. (2) (a) Notwithstanding anything contained in sub-rule (1), every assessee shall submit to the Superintendent of Central Excise, an Annual Financial Information statement for the preceding financial year to which the statement relates in the form specified by notification by the Board by 30th day of November of the succeeding year. 4.6 CBEC also issued "CBEC's Excise Manual of Supple....
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....nt' in rule 10 of the said Rules. It provides that every assessee shall maintain proper records, on a daily basis, in a legible manner indicating the particulars regarding description of the goods produced or manufactured, opening balance, quantity produced or manufactured, inventory of goods, quantity removed, assessable value, the amount of duty payable and particulars regarding amount of duty actually paid. The first page and the last page of each such account book shall be duly authenticated by the producer or the manufacturer or his authorised agent. All such records shall be preserved for a period of five years immediately after the financial year to which such records pertain. (vi) There is no requirement of 'authentication' of records ..... (vii) Every assessee is statutorily required to furnish to the Range Officer, a list in duplicate, of all the records prepared or maintained by him for accounting of transactions in regard to receipt, purchase, manufacture, storage, sales or delivery of the goods including inputs and capital goods. (viii) Every assessee shall, on demand ...... (ix) Every assessee ...... 2.2 Records....
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....of the goods then also they should have carried the necessary details. The fact that delivery memos that were used for the clearance of the goods did not contain the details as required in terms of the above stated rules is not in dispute. The contention of the appellant that this omission on their part was for the reason of ignorance of law can never be admitted as valid defence for the reason that appellant were registered under Central Excise from 2005 onwards, and in case they had any difficulty in following any of the provisions or in understanding the same they could have approached the jurisdictional officers. Ignorance of law is not an excuse for conducting the business in manner not sanctioned as per the law. We would rather say the present case is not case of ignorance of law, but of defiance of law, whereby Appellant 1 has by use of this device sought to clear the goods clandestinely, and would sought to cover up lapses in guise of ignorance etc. Counsel for the appellant has labored a lot before us to convince that appellants were innocent victim of ignorance of law and in fact they have paid duty on quantity which exceeded the quantity covered by delivery memos. We hav....
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....d in the DM. It is also to mention that total quantity cleared for the month on Invoices is also not matching with the Quantity cleared on Delivery Memo. iii. Similarly for the month of March, 2007, Appellant has submitted 25 copies of the Invoices (Inv. No 184 to 208) and 20 Delivery Memo (Sr. No. 254 to 274). It is noticed that for 20 Invoices (Inv Sr. No. 184 to 203), the Delivery Memo has been issued on subsequent date after issue of Invoice. It is not understood why DM was issued in these cases when Invoice was already issued. It is also noticed that in many cases, the Truck No. given on Invoices is different then mentioned in DM. Further, total quantity cleared for the month on Invoices is also not matching with the quantity cleared on Delivery Memo. iv. For the month of September, 2008, Appellant has submitted 7 copies of the Invoices (Inv. No.049 to 055) and 5 Delivery Memo ( Sr. No. 306 to 310). It is noticed that 5 Invoices (No. 49 to 53) has been issued after the date of DM mentioned in the statement submitted by the Appellant. Further, the total quantity cleared for the month on Invoices is also not matching with the quantity cleared on Delivery Memo. ....
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....rom the above it can be concluded that any exercise taken to correlate the delivery memos with the invoices would not yield any results. Further the explanation of assigning certain clearances made on the delivery memos, either in part or in complete towards job work, is based only on some specialized knowledge or the information that is available with the appellants and not disclosed in any transparent manner on the documents. The submissions made on this account which are not based on transparency in the documents cannot be verified. Hence these submissions need to be out-rightly rejected. It needs to be understood that the transparency of the documents produced as evidence and their correlation with the evidences produced by the other side as prime evidence by the other side is basic fundamental of the law of evidences. The documents shrouded with secrecy and having incomplete or no information correlating them directly with the evidences produced by other side in any proceedings cannot be accepted as evidence towards the innocence of the person proceeded against in the proceedings of tax evasion. In the case of D Bhurmall [1983 (13) ELT 1546 (SC)], Hon'ble Supreme Court has lai....
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....to which Section 178A does not apply, the burden of proving that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in all criminal or quasi-criminal proceedings, where there is no statutory provision to the contrary. But in appreciating its scope and the nature of the onus cast by it, we must pay due regard to other kindred principles, no less fundamental, or universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and as Prof. Brett felicitously puts it-"all exactness is a fake". El Dorado of absolute Proof being unattainable, the law, accepts for it, probability as a working substitute in this work-a-day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus legal proof is not necessarily perfect proof often it is nothing more than a prudent man's estimate as to the probabilities of the case. ....
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.... of Section 167 may not be the same as in proceedings when the imposition of the other kind of penalty under the second part of the entry is contemplated. We have already alluded to this aspect of the matter. It will be sufficient to reiterate that the penalty of confiscation is a penalty in rem which is enforced against the goods and the second kind of penalty is one in personam which is enforced against the person concerned in the smuggling of the goods. In the case of the former, therefore, it is not necessary for the Customs authorities to prove that any particular person is concerned with their illicit importation or exportation. It is enough if the Department furnishes prima facie proof of the goods being smuggled stocks. In the case of the latter penalty, the Department has to prove further that the person proceeded against was concerned in the smuggling. ..... 37. In the view that the initial onus of proof on the Department can be sufficiently discharged by circumstantial evidence, we are supported by the decision, of this Court in Issardas Daulat Ram's case, (1962) Supp. (1) SCR 358. There, on September 14, 1954, that is, long before insertion of Section ....
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....es were seized from the possession of the Respondent No. 1 (appellant) who had not obtained licence of a customs clearance permit for importation of the same. They were of foreign make and must have been imported across the customs frontier. The Explanations offered by the Respondent No. 1 regarding its coming into possession of the same between 1956 and 1957 were found, upon enquiries by the Customs authorities, to be false, the result of these enquiries were communicated to the Respondent No. 1 who was thereafter heard by the adjudicating officer. Yet no attempt was made by the Respondent No. 1 to substantiate its claim regarding lawful importation of the watches........ The Customs authorities came to the conclusion that the said 280 watches were illegally imported and thereupon made an order for confiscation of the same. It is not for this Court, in exercise of its jurisdiction under Article 226 of the Constitution to revise, set aside or quash this order, in the facts of this case." 39. In appeal on certificate, it was contended before this Court that there was no evidence that these watches had not been illicitly imported into India and that the impugned order wrongf....
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....e the petitioner Company provided if otherwise the Company could have legitimately claimed. The learned Counsel appearing for the respondent Municipal Corporation submitted that the concessional rate would be available only if the raw material was utilised by the Company for manufacturing goods within the industrial undertaking. If a declaration had been filed in proper Form 14 there could have been a scope for verification and in the absence of such a declaration the question of refunding at this distance of time does not arise. It is also his further submission that the concession should have been availed at the time when it was available. Having failed to avail the question of claiming the same later does not arise and consequently no refund can be claimed. 3. The amended Rules came into force in 1970. Rule 4(2) provides for payment octroi at a lower rate by certain industrial undertakings in respect of the goods mentioned in Part IA of Schedule II to the Rules. Aluminium is at Entry No. 77. Part IA reads thus : .... The declaration contemplated in Form 14 is to the effect that the goods imported shall not be used for any other purpose for sale or othe....
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....o the Civil Court being conditionally strict compliance with the procedure prescribed the Civil Court was incompetent to decree the suit unless the condition was fulfilled. We are unable to agree with that contention. The rules framed by the Government merely set up the procedure to be followed in preferring an application to the Municipality for obtaining refund of the tax paid. The Municipality is under a statutory obligation once the procedure followed is fulfilled, to grant refund of the toll. The application for refund of the toll must be made within fifteen days from the date of payment of the toll. It has to be accompanied by the original receipts. If these procedural requirements are not fulfilled, the Municipality may decline to refund the toll and relegate the claimant to a suit. It would then be open to the party claiming a refund to seek the assistance of the Court, and to prove by evidence which is in law admissible that the goods transported by him fell within the order issued under Section 157(3) of the Act. The rules framed by the Government relating to the procedure to be followed in giving effect to the exemptions on April 15, 1939, do not purport to bar the juris....
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....a 198 it is observed as under : "Application for rebate. - When a rating authority receives an application for a rebate it has a duty to determine whether the residential occupier is entitled to a rebate and, if so, the amount to which he is entitled; and it must request him in writing to furnish such information and evidence as it may reasonably require as to the persons who reside in the hereditament, his income, and the income of his spouse. Unless the rating authority is satisfied that the residential occupier has furnished all the information and evidence it requires, it is under no duty to grant a rebate." (emphasis supplied) 7. In Kedarnath Jute Manufacturing Co. v. Commercial Tax Officer, Calcutta and Ors. the appellant which was a Public Limited Company, sought exemption under the provisions of the Bengal Finance (Sales Tax) Act, 1941 in respect of certain sales but did not produce before the Officer the declaration forms from the purchaser dealers required to be produced under the proviso to that sub-clause granting exemption. It was contended on behalf of the appellant that proviso to the sub-clause was only directory and the dealer is not precluded whe....
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.... on all fours to the case before us. As already mentioned the concession can be granted only if the raw material is used in the industrial undertaking seeking such concession. For that a verification was necessary and that is why in the rule itself it is mentioned that a declaration has to be filed in Form 14 facilitating verification. Failure to file the same would automatically disentitle the Company from claiming any such concession. 8. In any event the petitioner Company cannot claim concession at this distance as a matter of right. In Orissa Cement Ltd. v. State of Orissa & Ors AIR 1991 SC 1676 it was observed thus : "We are inclined to accept the view urged on behalf of the State that a finding regarding the invalidity of a levy need not automatically result in a direction for a refund of all collections thereof made earlier. The declaration regarding the invalidity of a provision and the determination of the relief that should be granted in consequence thereof are two different things and, in the latter sphere, the Court has, and must be held to have, a certain amount of discretion. It is well-settled proposition that it is open to the Court to grant, mould....
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....: "The circumstances in which the appellants did not pay the duty on the intermediary product before putting the same to the captive consumption for producing that stage, the appellants contested the correctness of the classification and had, therefore, not paid the duty on the intermediary product. When it was found that they were liable to pay duty on the intermediary product and had not paid the same, but had paid the duty on the end product, they could not ordinarily have complied with the requirements of Rule 56A." Nor can we find support from the ratio in B.O.I. Finance Ltd. v. The Custodian & Others, JT 1997 (4) 15, that "infringements of the instructions issued by the Reserve Bank of India under the Banking Regulations Act prohibiting the banks from entering into buy-back arrangements do not invalidate such contracts entered into between the banks and it's customers", as it involved a question of invalidation of the contract. Here neither the contract nor the import is invalid or illegal and the question is only whether the importer is entitled to the concessional duty. 4.12 Following this decision Hon'ble Himachal Pradesh High Court has in the case....
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.... on the basis of the purpose it seeks to achieve. The purpose of Notification No. 43 of 2001, dated 26-6-2001 is to ensure that excise duty should not be evaded under the garb of export sales. The Hon'ble Apex Court in Indian Aluminium Company Limited v. Thane Municipal Corporation reported in 1992 Supp (1) SCC 480 in Paragraph No. 6 at Page No. 488 and Paragraph No. 3 at Page No. 485, has observed as under :- ....... 23. The Learned Counsel appearing for the appellant has placed reliance on a judgment dated 12-6-2017 passed by the Division Bench of this Court in C.M.A. No. 3044 of 2011 [2017 (355) E.L.T. 45 (Mad.)], wherein, this Court observed 'as under :- 13. Therefore, what emanates from the facts obtaining in the present case is that, there was a non-disclosure of information by the Assessee. The Assessee has taken a stand that, since, it was always below the monetary limit fixed for clearances qua SSI Units, it never had an occasion to make any disclosure via a classification list. 13.1 In our view, this cannot be construed as suppression of fact, within the meaning of Section 11A( 1) of the 1944 Act. Mere non-disclosure of facts, in such l....
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....he appellants are not entitled to exemption from payment of duty under Rule 19 of Central Excise Rules. The order of the Customs, Excise and Service Tax Appellate Tribunal in confirming the levy of duty by invoking extended period of limitation, does not requires any interference. 4.14 The case made out against the appellants by the revenue is in respect of the documents - delivery memos recovered from their premises which were used by the Appellant 1 for transportation/ clearance of the impugned goods from their premises to the premises of Appellant 2. It is also interesting fact that Appellant 1 and Appellant 2 though separately constituted companies have common director who is Appellant 3 and who is only active Director looking after the work of both the companies. It is more interesting to note that the entire product line of the Appellant 1 and Appellant 2 including the inputs and raw materials of both the units is identical. It is also evident that the invoices produced as evidence of payment of duty cannot be correlated with the delivery memos for the want of necessary details correlating the two. In our view even the person preparing the invoice was having the delivery m....
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....o be shown that the Revenue neutral situation comes about in relation to the credit available to the assessee himself and not by way of availability of credit to the buyer of the assessee's manufactured goods; (d) We express our opinion in favour of the view taken in the case of M/s. International Auto Products (P) Ltd. (supra) and endorse the proposition that once an assessee has chosen to pay duty, he has to take all the consequences of payment of duty. 4.16 In case of clandestine clearance against the delivery memo there could be no claim of CENVAT credit. The claim of revenue neutrality cannot be accepted in such case. In case of Star industries [2015 (324) E.L.T. 656 (S.C.)] Hon'ble Supreme Court has held as follows: 35. It was submitted by the learned counsel for the assessee that the entire exercise is Revenue neutral because of the reason that the assessee would, in any case, get Cenvat credit of the duty paid. If that is so, this argument in the instant case rather goes against the assessee. Since the assessee is in appeal and if the exercise is Revenue neutral, then there was no need even to file the appeal. Be that as it may, if that is so, it is alw....
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....or collusion or wilful mis-statement or suppression or contravention of any provision of any Act, is a question of fact depending upon the facts and circumstances of a particular case." 14. In the case of Cosmic Dye Chemical v. Collector of Central Excise, Bombay, (1995) 6 SCC 117 = 1995 (75) E.L.T. 721 (S.C.), it is held : "Now so far as fraud and collusion are concerned, it is evident that the requisite intent, i.e., intent to evade duty is built into these very words. So far as mis-statement or suppression of facts are concerned, they are clearly qualified by the word "wilful" preceding the words "mis-statement or suppression of facts" which means with intent to evade duty. The next set of words "contravention of any of the provisions of this Act or rules" is again qualified by the immediately following words "with intent to evade payment of duty". It is, therefore, not correct to say that there can be a suppression or mis-statement of fact, which is not wilful and yet constitute a permissible ground for the purpose of the proviso to Section 11-A. Mis-statement or suppression of fact must be willful." 15. In Anand Nishikawa Co. Ltd. v. Commissioner of ....
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....Ltd., Plot No. 51, Mouza Brahmanwada, District Nagpur, are related companies having common directors. Shri. Vijay Kumar Mantri further stated that the Noticee No. 1 is engaged in manufacture of Manganese Oxide (MnO) by way of procuring Manganese Dioxide (MnO2) from M/s. Manganese Ore India Ltd. (MOIL). On being asked Shri. Vijay Kumar Mantri stated that from January 2007 onwards, 99% of MnO manufactured by the Noticee No. 1 is sold to M/s. GoodEarth AgroChem Pvt. Ltd., Brahmanwada. Shri. Vijay Kumar Mantri also informed that the Noticee No. 1 is also engaged in trading activity of MnO, for which the Noticee No. 1 issues Commercial Invoices. In the statement dated 10.03.2010, on being asked to explain the procedure followed in dispatch of MnO, Shri. Vijay Kumar Mantri stated that when the finished goods i.e. MnO are sold, a Delivery Memo is prepared and the goods are sent to Noticee No. 2 without issuing Central Excise Invoices. This process was carried out for the period 2006-07, 2008-09 and 2009-10 (up to October 2009). He further added that from October 2009 onwards till date, the finished goods are sold on Tax invoices without issuing delivery memo. Shri. Vijay Kumar Ma....
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.... Limited only. On being asked about the procedures followed in despatch of finished goods etc., Shri. Vijay Kumar Mantri stated that when the finished goods i.e. MnO are cleared / dispatched, a Delivery Memo is prepared and the goods are sent to M/s Goodearth Agrochem Pvt. Ltd., Bramhanwada without issuing Central Excise Invoices. This process was carried out for the period. 2006-07 (from December 2006 to March 2007), 2008-09 and 2009-10 (up to October 2009). Shri. Vijay Kumar Mantri further stated that no clearances or dispatches against the Delivery Challans were shown in the Daily Stock Account. Further on being asked whether Tax Invoices were issued, for the exact quantity of MnO cleared on Delivery Memo, by M/s. BSS Mines & Minerals Pvt. Ltd., Yerla to M/s. Goodearth Agrochem Private Limited, Bramhanwada, Shri. Vijay Kumar Mantri stated that after the goods are despatched to M/s. Goodearth Agrochem Private Limited Brahmanwada, for a month on Delivery Memo, some Central Excise invoices for the sold quantity of finished goods of different grades were prepared on monthly basis and Central Excise duty is paid accordingly, for the material sent under various delivery memos. ....
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....added that they have directly sold Manganese Ore to the tune of 1247.660 MT, 1017.670 MT and 269.810 MT, falling under CETH No. 2620, showing Trading sale in the year 2007-08, 2008-09 and 2009-10 (up to October 2009), respectively, under the cover of commercial invoices to their related company namely M/s. Goodearth Agrochem Private Limited, Bramhanwada, from the purchase of Manganese Ore from MOIL. On being asked that though in their Balance sheet of 2007-08, opening stock of manufactured goods i.e. MnO is shown as 70 MT, but as per Daily stock account, the opening stock of MnO is shown as 199.520, please explain why there is difference of 129.520 MT. Also Shri. Vijay Kumar Mantri was put to explain that though in Balance sheet of 2007-08, the production of MnO is shown as 341.380 MT, whereas as per Daily stock account the production is shown as 211.860, please explain why there is difference of 129.520 MT. Also Shri. Vijay Kumar Mantri was put to explain that whereas the closing balance of MnO shown as 369.380 MT is tallied in Balance sheet as well as in Daily stock account, Shri. Vijay Kumar Mantri stated that in the Balance sheet they have not considered sinters and re....
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....Section 11AC is justified. Since we uphold the penalty imposed under section 11AC of the Central Excise Act, 1944 on Appellant 1, we do not find any justification for imposition of same amount of penalty under Rule 25 of the Central Excise Rules, 2002. Thus the penalty impose under Rule 25 on the Appellant 1 is set aside. 4.20 Appellant 2 is the receiver of the goods cleared by the Appellant 1 against delivery memos. The finding recorded by the Commissioner, to the effect that these goods do not get reflected in their book of accounts is not challenged. Appellant 2 has knowingly dealt with goods which were liable for confiscation knowingly and hence penalty imposed under Rule 26 is upheld. 4.21. Appellant 3 is the Director with both Appellant 1 and Appellant 2. He is responsible for the entire operations of both the units. All the activities of the clearance of the goods against delivery memos etc., were undertaken a with his knowledge as he was the one responsible for the activities of both the units. For his acts of omission and commissions which lead to the clearance of the goods against the delivery memos without payment of duty as leviable, have made the goods liable for....
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....4 08.02.07 9.000 236 09.02.07 Manganese Oxide 4.749 4.749 BSS/INV/06-07/175 09.02.07 9.000 237 09.02.07 Manganese Oxide 6.200 6.200 BSS/INV/06-07/176 10.02.07 9.000 238 10.02.07 Manganese Oxide 9.497 9.497 BSS/INV/06-07/177 12.02.07 9.000 239 12.02.07 Manganese Oxide 4.749 4.749 BSS/INV/06-07/178 14.02.07 9.000 240 13.02.07 Manganese Oxide 4.749 4.749 BSS/INV/06-07/179 17.02.07 9.000 241 13.02.07 Manganese Oxide 9.497 9.497 BSS/INV/06-07/180 20.02.07 9.000 242 15.02.07 Manganese Oxide 9.497 9.497 BSS/INV/06-07/181 22.02.07 8.724 243 16.02.07 Manganese Oxide 9.497 9.497 BSS/INV/06-07/182 24.02.07 9.000 245 19.02.07 Manganese Oxide 9.497 9.497 BSS/INV/06-07/183 27.02.07 7.460 246 19.02.07 Manganese Oxide 8.680 8.680 248 22.02.07 Manganese Oxide 9.280 9.280 250 28.02.07 Manganese Oxide 6.392 6.392 251 28.02.07 Manganese Oxide 10.410 10.410 TOTAL OF DM's 146.184 0.000 146.184 TOTAL OF INVOICES ....
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.... BSS/INV/06-07/204 17.03.2007 11.850 BSS/INV/06-07/205 19.03.2007 8.800 BSS/INV/06-07/206 20.03.2007 8.800 BSS/INV/06-07/207 21.03.2007 8.800 BSS/INV/06-07/208 22.03.2007 8.800 TOTAL OF DM's 141.844 0.000 141.844 TOTAL OF INVOICES 234.200 Document 3 BSS MINES & MINERALS PVT LTD STATEMENT SHOWING DISPATCHES UNDER DM & SUBSEQUENT INVOICES ISSUED DURING THE MONTH OF SEPTEMBER 2008 "DM NO. Date Particulars of goods Total MnO Qty. (MT) of DM as per Job Work Quantity Actual MnO Qnty As per Invoice No. Date Qty. MT DM SCN 306 15.09.2008 Manganese Oxide 8.100 8.100 BSS/08-09/049 02.09.2008 3.230 307 16.09.2008 Manganese Oxide 7.060 7.060 BSS/08-09/050 10.09.2008 16.550 308 20.09.2008 Manganese Oxide 11.440 11.440 BSS/08-09/051 14.09.2008 11.790 309 25.09 2008 Manganese Oxide 7.700 7.700 BSS/08-09/052 19.09.2008 8.360 310 29.09.2008 Manganese Oxide 7.740 7.740 BSS/08-09/053 25.09.2008 3.030 BSS/08-09/054 26.09.2008 7.700 BSS/08-09/055 29.09.2008 7.740....
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....anese Oxide 4.780 4.780 0.000 112 25.02.2009 Manganese Oxide 5.450 5.450 0.000 113 25.02.2009 Manganese Oxide 5.480 5.480 0.000 114 26.02.2009 Manganese Oxide 5.490 5.490 0.000 115 27.02.2009 Manganese Oxide 5.510 5.510 0.000 116 27.02.2009 Manganese Oxide 5.430 5.430 117 28.02.2009 Manganese Oxide 5.340 5.340 0.000 219.290 74.500 144.790 TOTAL 153.360 Document 5 BSS MINES & MINERALS PVT LTD. STATEMENT SHOWING DISPATCHES UNDER D.M. & SUBSEQUENT INVOICES ISSUED DURING THE MONTH OF MARCH-2009 Actual Qty of 15 D.M. NO. Date Particulars of goods Total MnO Qty. (MT) of DM as per Job Work Quantity of Removed MnO as per Invoice No. Date Qty. MT MnO (MT) SCN DM 118 02.03.2009 Manganese Oxide 5.370 5.370 0.000 BSS/08-09/107 02.03.2009 4.850 119 02.03.2009 Manganese Oxide 5.700 5.700 0.000 120 03.03.2009 Manganese Oxide 4.870 4.870 0.000 BSS/08-09/108 03.03.2009 BSS/08-09/109 05.03.2009 9.533 16.400 121 03.03.2009 Mangane....
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.... 12.010 12.010 BSS/09-10/001 BSS/09-10/002 02.04.2009 BSS/09-10/003 03.04.2009 BSS/09-10/004 06.04.2009 01.04.2009 9.560 9.860 10.220 12.010 153 08.04.09 Manganese Oxide 11.770 11.770 BSS/09-10/005 08.04.2009 11.770 154 09.04.09 Manganese Oxide 12.100 12.100 BSS/09-10/006 09.04.2009 12.100 155 10.04.09 Manganese Oxide 10.760 10.760 BSS/09-10/007 10.04.2009 10.760 156 11.04.09 Manganese Oxide 11.510 11.510 BSS/09-10/008 11.04.2009 8.078 157 13.04.09 Manganese Oxide 10.700 10.700 BSS/09-10/009 13.04.2009 10.700 158 14.04.09 Manganese Oxide 10.650 10.650 BSS/09-10/010 14.04.2009 8.613 159 15.04.09 Manganese Oxide 11.100 11.100 160 17.04.09 Manganese Oxide 11.980 11.980 161 17.04.09 Manganese Oxide 8.470 162 18.04.09 Manganese Oxide 10.490 163 20.04.09 Manganese Oxide 11.080] 8.470 10.490 11.080 164 22.04.09 Manganese Oxide 11.200 11.200 BSS/09-10/011 BSS/09-10/012 BSS/09-10/013 17.04.2009 BSS/09-10/014 BSS/09-10/015....