TaxTMI 
TaxTMI 
2023 (7) TMI 714
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....as registered in December, 2014 under the Central Excise Act and subsequently in July, 2015 for service tax with Registration No.AAGP6286J001. 3. Acting upon an intelligence that the appellant is involved in fraudulently passing the cenvat credit through fake invoices without actually manufacturing the goods, the Unit was kept under surveillance by the Officers of Preventive Branch of Central Excise Division. During the visit of the factory premises on 14.03.2016 by the Officers, Preventive Branch, it was noticed that the appellant was getting the raw materials mainly from Bawal and Sonepat and was selling it to Mumbai, Sonepat and Delhi. It was also found that the Unit is non-functional since its inception, yet two furnaces were installed in the Unit in July, 2015. From the electricity bills, it was observed that there was no consumption of electricity in the manufacture of finished goods. The DG set found to be installed in the factory premises was installed on 19.02.2016. On further verification of the premises, it was found that the Unit did not have the facility to manufacture the goods i.e. copper wire, rods and copper ingots though the appellant has shown manufacture and cl....
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....in-appeal dated 17.03.2021 before this Tribunal. 6. I have heard the learned counsel for the appellant and the authorised representative for the Revenue and have perused the case records. 7. The first contention raised by the learned Counsel for the appellant is that the authorities below have erred in relying on the statement of the witnesses without first cross examining them and the same is contrary to the provisions of section 9D(1) of the Central Excise Act, 1944. From the records, I find that the officers of Preventive Branch visited the unit of the appellant on 14.3.2016 and recorded the statement of the Guard, Technical Operator on the same day, thereafter statement of the Proprietor Shri Mohit Gupta and the Accountant Shri Avirag Jain was recorded on 28.3.2016 and 6.4.2016 respectively. The show cause notice was issued on 12.9.2016 , however the appellant did not submit any reply in response thereto and subsequently when the case was fixed for personal hearing on 16.2.2018, 20.2.2018 and 23.2.2018 neither appellant nor his representative appeared and hence the case was proceeded ex parte by the adjudicating authority. When the appellant had chosen not to participate in t....
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.... in the proceedings as he neither submitted his reply to the show cause notice nor appeared to contest the case or seek permission before the adjudicating authority to cross examine the persons who have made the said statements. The appellant having missed the bus himself cannot now turn around and take benefit of his own wrong. In the case of Manek Chemicals (supra), the assessee specifically prayed to cross examine the Chief Chemist, who made the report against him. 9. Needless to say, there are several other factors which establish clandestine removal of goods in the present case. During the visit of the unit by the officers of Preventing Branch, it was specifically noted that: i) the unit was non-functional since inception. Out of the two furnaces installed in the unit, only one had been used only once and the other one has not been used at all. ii) The unit did not have the facility to manufacture copper rods. iii) On perusal of the electricity bills, it was observed that the electricity has not been used in the manufacture of finished goods though the appellant has shown manufacture of copper rods, lead alloys ingots, re-melted copper ingots, re-melted lead in goods.....
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....ious judgments in support of his contention that unaccounted goods in the factory not entered in RG-1 register is not enough to sustain confiscation i.e. (i) Commissioner of Central Excise & Customs, Surat Vs. Roma Plastics Pvt. Ltd. - 2016 (334) ELT 68 (Tribunal-Ahmd.), (ii) Cubex Tubings Ltd. Vs. Commissioner of Central Excise, Hyderabad - 2008 (223) ELT 406 (Tribunal-Bang.), (iii) Zincollied (India) Vs. Commissioner of Central Excise, Vapi, (iv) Commissioner of Central Excise Vs. S. Channi Steel Pvt. Ltd. and (v) Commissioner of Central Excise, Kanpur Vs. Trela Footwear Exports (P) Ltd. - 2013 (295) ELT 316 (Tribunal-Delhi). On perusal of these judgments I find that in those cases there was no other evidence available on record to corroborate the charges and there were concurrent findings in favour of the assessee. 13. The glaring facts of the present case are that in a factory premises where neither electricity is used nor there is any facility to manufacture the goods i.e., copper wire rods and copper ingots, yet the appellant is claiming to have manufactured lead ingots. The installation of the two furnaces, which are not in use and similarly the D.G. set is only to give a d....
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....lay a role, clearly governs the present case. The appellant was registered with the Excise Department as a 'manufacturer'. It is not open to the appellant to change his status now as a dealer, just to escape from the clutches of law. 16. The learned counsel has next pleaded that the order of confiscation of goods is unsustainable as there is no evasion of duty on account of fraud, collusion, wilful mis-statement, suppression of facts or contravention of provisions of rules with intent to evade payment of duty. The learned Counsel has also challenged the imposition of redemption fine and penalty being highly excessive and incommensurate with the gravity of offence. I am of the considered opinion that the goods were brought in the factory premises without having proper invoices/documents with intent to clear them clandestinely. During the visit, the said goods were seized as no record was found to be maintained. Further, the modus operandi of the appellant as revealed from the statement made by the Accountant, Shri Aviraj Jain that the goods purchased from the market were entered in the finished goods register and also entered the same in the register at the time of sale; clearly sh....