TaxTMI 
TaxTMI 
2023 (10) TMI 1252
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....Pradeep Tyagi having factory at 15, Krishna Vihar Phase - I Sevadham, Loni, Distt Ghaziabad, under the provisions of Section 11A (4) of the Central Excise Act, 1944. 2. I order to charge and recover interest at the applicable rate on the aforesaid demand of Central Excise duty amounting to Rs 1,14,85,955/- till the date of payment of the said central excise duty under Section 11AA/ 11AB of the Central Excise Act, 1944. 3. I impose penalty of Rs 1,14,85,955/- upon Shri Pintu Tyagi and Shri Pradeep Tyagi having factory at 15, Krishna Vihar Phase - I Sevadham, Loni, Distt Ghaziabad, under Rule 25 of the Central Excise Rules, 2002 read with Section 11AC of the Central Excise Act, 1944. 4. I impose penalty of Rs 5,00,000/- upon Shri Pintu Tyagi under Rule 26 of the Central Excise Rules, 2002. 5. I impose penalty of Rs 5,00,000/- upon Shri Pradeep Tyagi under Rule 26 of the Central Excise Rules, 2002. 2.1 Intelligence was received that Appellant (Shri Paresh Tyagi) and his brother Shri Pintu Tyagi (Expired on 17.06.2013) were operating a factory located at Gali No 15, Krishna Vihar Phase - I Sevadham, Loni, Distt Ghaziabad and were engaged in castin....
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....so liable for penalty under Rule 25 of Central Excise Rules, 2002 read with Section 11 AC of the Central Excise Act, 1944. Shri Pintu Tyagi and Shri Paresh Tyagi who were engaged in the day to day operation of the unit and were have by their act of omission and commission leading to the evasion of said duty were liable to penalty under Rule 26 of the Central Excise Rules, 2002. 2.4 A show cause notice dated 05.02.2015 was issued to- I. the unit of Shri Pintu Tyagi and Shri Pradeep Tyagi calling it to show cause as to why: a) The central excise duty amounting to Rs 1,14,85,955/- [Rs 1,11,51,412/- BED + Rs 2,23,028/- Ed Cess + Rs 1,11,514 SHE cess] [Rupees one crore eleven lakhs eighty five thousand nine hundred and fifty five only)] should not be demanded and recovered from them under the provisions of Section 11A (4) of the Central Excise Act, 1944. b) Interest on the amount as at S No (I) supra, should not be recovered till the date of payment of the said central excise duty under Section 11AA/ 11AB of Central Excise Act, 1944 c) Penalty should not be imposed upon them under Rule 25 of Central Excise Rules, 2002 read with Section 11 AC of the....
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....ase I Sevadham. Loni, Distt Ghaziabad.; Shri Pintu Tyagi and Shri Pradeep Tyagi, both S/o Shri Rajbal Tyagi House No 873, Gali No 14 Mandoli Extension, Near National Flower School, Delhi. Since nobody was found present at the factory address hence the notices were sent through speed post on 16.02.2015. The show cause sent to House No 873, Gali No 14 Mandoli Extension, Near National Flower School, Delhi returned undelivered on 27.02.2015. Therefore the same were served by pasting at that address under panchnama dtd 02.03.2015. None of the notices filed any written reply to the notice. They were also granted the opportunity of personal hearing on 15.02.2016 and 26.02.2016 vide C No V(15) Adj. /Pintu Tyagi / Gzb / Comm /166/ 14/ 552 to 554 dtd 05.02.2016 and even C No 848 to 852 dtd 17.02.2016. None of the noticee appeared on the aforesaid dates scheduled for personal hearing. Hence, I decide the case ex parte." 4.3 From the perusal of the show cause notice it is observed that the show cause notice was issued to three persons namely: 1. Factory of Shri Pintu Tyagi and Shri Pradeep Tyagi, Gali No 15 Krishna Vihar Phase I Sevadham. Loni, Distt Ghaziabad. ....
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....ucted peacefully in our presence without causing any damage either to property or to persons. The proceedings were recorded by one of the officers on his laptop on our request and as dictated by us. The contents of this Panchnama were read over to us in our vernacular and we have understood the same well. The Panchnama concluded at 16.30 Hrs on the same day i.e. 09.02.2016. We are satisfied with the proceedings conducted by the officers." "PANCHNAMA DATED 09.02.2016 Drawn At House No 873, Gali No 14 Mandoli Extension, Near National Flower School, Delhi Panch1: Shri Vikram Gautam, Aged 19 Years S/o Shri Sher Singh, R/o Village Rajapur, Shastri Nagar, Gahziabad (U P). Panch2: Shri Vijay Kumar, Aged 21 Years S/o Shri Puran Singh, R/o Baghwali Gali, Rajapur, Shastri Nagar, Gahziabad (U P). "We the above named panchas having been called upon by the officers of Anti Evasion, Central Excise & Service Tax Commissionerate Ghaziabad (hereinafter referred to as 'officers') presented ourselves today i.e. on 9th February' 206 at about 15.00 Hrs near Gali No 14, Mandoli Extension, Delhi. The officers introduced themselves by displaying their identity cards and requested us to w....
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....lied with and the appellant cannot claim any violation of the same. Justice Krishna Iyer has in landmark decision in case of Chairman, Board of Mining Examination Vs. Ramjee, AIR 1977 SC 965 observed as under: "Natural justice is no unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be financial nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt - that is the conscience of the matter." 4.6 In case DHARAMPAL SATYAPAL LTD. [2015 (320) E.L.T. 3 (S.C.)] Hon'ble Apex Court has observed as follows: "30) But that is not the end of the matter. While the law on the principle of audi alteram partem has progressed in the manner mentioned above, at the same time, the Courts have also repea....
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....ve (rise to) a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The court dos not act in vain'. Relying on these comments, Brandon LJ opined in Cinnamond v. British Airports Authority - (1980) 1 WLR 582 at 593 that 'no one can complain of not being given an opportunity to make representations if such an opportunity would have availed him nothing'. In such situations, fair procedures appear to serve no purpose since 'right' result can be secured without according such treatment to the individual. In this behalf, we need to notice one other exception which has been carved out to the aforesaid principle by the Courts. Even if it is found by the Court that there is a violation of principles of natural justice, the Courts have held that it may not be necessary to strike down the action and refer the matter back to the authorities to take fresh decision after complying with the procedural requirement in those cases where non-grant of hearing has not caused any prejudice to the person against whom the action is taken. Therefore, every violation of a facet of natural justice may not lead to the conclusion that order passed is always....
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....ven to the appellant to reply to the show cause notice and appear for personal hearing. 4.6 We have observed in para 4.3 show cause notice has been issued in the present case to three persons namely, i. Factory of Shri Pintu Tyagi and Shri Pradeep Tyagi; ii. Shri Pintu Tyagi (S/o Shri Rajbal Tyagi); iii. Shri Pradeep Tyagi (S/o Rajbal Tyagi). Notices were served on there persons separately and the matter has been adjudicated against the said three persons holding them responsible for their acts on the basis of the evidence available on record. From the facts as available on record, the factory of Shri Pintu Tyagi and Shri Pradeep Tyagi is a benaami firm, having no separate name. Both Shri Pintu Tyagi and Shri Pradeep Tyagi were operating the benaami firm to which no name was given and no registration under Central Excise Act, 1944 or under any other Act for the time being in force, was taken. Also as per the statements available on record it is evident that the appellant and his brother have not entered into any partnership deed for operating this factory. Interestingly the clandestine turnover of the factory was more than Rs 12,00,00,000/- (Rupees Twelve Crore) and all the tran....
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....d after melting the same, they cast brass rods. Some of the brass rods are sold by them and remaining are used by them in their factory for forging of brass valve and brass cocks, which are sold by them. • His brother Shri Pradeep Tyagi is working with him in the factory. There is no written partnership deed between himself and his brother. • The factory along with some machines installed in the factory were taken on rent of Rs 75000/- from Shri Gajendra Tyagi (Mama) from September 2010. Some machines have also been fabricated by them in the factory. No rent has been paid for the reason of some disputes. No written rent agreement has been made except the agreement made on plain paper. •  For melting raw material they have two furnaces. One furnace is used for heating raw material and other is used for brass rods. Three forgings machines are installed in the factory. Out of three forging machines only two are in use. • They have electricity connection and the electricity the forging and casting machines are electricity operated. They also have generator back up. Electricity connection is in the name of brother of Shri Gajen....
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....s was undertaken through this account. No cash book was maintained and all the cash entries were made in the register maintained for receiving raw material and sending finished goods. • All registers were maintained by Shri Raju Yadav S/o Shri Ramvrat Yadav. • They have never purchased or sold any material to Shri Vinod Tyagi and Shri Gajendra Tyagi. Some tarnscations have been done with Shri Ashok Tyagi and details are available in registers. • 1400 to 1500 Kgs of material valued about Rs 4,00,000/- is cast daily. They were getting about Rs 25-30/- per kg. Raw material would be valued around Rs 290-300/- per kg and finished good was valued around Rs 315-325/- per kg. • They are not registered with sales tax department or any other department. • The unit has been not named by them as they were not aware that for undertaking said works they had to form company or get registered with the government department. 4.9 In his statement record on the date of search, the Accountant/ Foreman of the unit Shri Raju Yadav stated that: • He is working as foreman in the unit and maintains all the records of productio....
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....back to same person after receiving job charges. The scrap generated is also returned to the same person. • The rate of Dhalai received by them varies and for some time it is between Rs 300-330/- per kg. Similarly the rate of scrap was Rs 280-300/- per kg. • The record of materials received by them in a copy and after job is completed the same is handed over to the party after receiving the job charges. Besides the record in copy no other bill/ invoice is not prepared by them. The job charges are fixed with parties on per piece basis or per kg basis. • Their business is very small and they do not purchase or sell any material hence are not registered with any authority. The reply as recorded in the statement to question 3 is reproduced below: 4.13 From the facts as admitted by the appellant and other in their statement recorded under Section 14 of the Central Excise Act, 1944 it is quite evident that factory at Gali No 15 Krishna Vihar Phase 1, Sevadham, Loni Gaziabad, is a factory jointly owned by the Appellant and his younger brother, without entering into any formal partnership. The factory has not been given any name nor has been reg....
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....e of burden of proof is that sufficiency and weight of the evidence is to be considered to use the words of Lord Mansfield in Blatch v. Archar (1774) 1 Cowp. 63 at p. 65 "According to the Proof which it was in the power of one side to prove and in the power of the other to have contradicted". Since it is exceedingly difficult, if not absolutely impossible for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden. 32. Smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the person concerned in it. On the principle underlying Section 106, Evidence Act, the burden to establish those facts is cast on the person concerned : and if he fails to establish or explain those facts, an adverse inference of facts may arise against him, which coupled with the presumptive evidence adduced by the prosecution or the Department would rebut the in....
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....ang)] • International Cylinders Pvt Ltd. [2010 (255) ELT 68 (HP)] • A G Incorporation [2013 (287) ELT 357 (T-Del)] • Mohan Lal [2009 (237) ELT 435 (SC)] • Indian Cork Mills Ltd [1984 (017) ELT 0513 (T)] • Shreeji Aluminium Pvt Ltd. [2012 (282) ELT 234 (T)] • Shalu dyeing & Printing Mills [2003 (152) ELT 352 (T)] • Gopal Industries Ltd [2007 (214) ELT 19 (T-LB)] 4.15 in case of Gopal Industries referred by the Commissioner in the impugned order, following has been held: "17. It is not in dispute that the show cause notice dated 10-8-2001 was sent not only in the name of the partnership firm, but to all the partners of the firm. The learned Commissioner has for valid reasons, recorded in paragraph 25 of the impugned order, held that the show cause notice was to be treated as properly served. It is evident from the record that when the service of the show cause notice was questioned before the Hon'ble High Court of Madhya Pradesh, the Hon'ble High Court, while disposing of the writ petition of the partners ordered the noticees to file their reply on 24-3-2003 and participate in the p....
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....him and that challans and daily production reports which bear his signatures, were prepared by him and they were of the appellant firm. According to him, the daily production report depicted the number of tin containers produced/ manufactured on a specific day. Whenever, he prepared the daily production report/challan he submitted the original copy to the Managing Director. The facts revealed by the Managing Director, Shri Yogesh Garg, the authorized signatory, Shri Girijesh Rai and Shri Awadesh Kumar Saxena make it clear that the said private documents recovered from the appellant premises on 1-9-1998 were maintained by the appellant and that the record, namely, the daily production reports, challans etc. were pertaining to the clandestine production and removal of tin containers without payment of duty. We have perused copies of these two note-books containing the private record and we find that there were signatures of Awadesh Kumar Saxena, Electronics Engineer at various places. The daily report showed particulars of the opening stock, production and the closing stock of the said excisable goods. Admittedly, the production of the tin containers, which was recorded in these dail....
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.... be said that the Commissioner committed any error in holding that the appellant had manufactured and cleared tin containers in a clandestine manner. The quantum of liability which is worked out, has not been disputed before us. We find ourselves in complete agreement with the reasoning and findings of the learned Commissioner in holding that the charge of clandestine removal of tin containers by the appellants was established beyond doubt. No further corroboration was required in view of the clinching nature of the oral and documentary evidence establishing clandestine production and removal of tin containers by the appellant. It is evident that Shri Yogesh Garg, noticee No. (2), partner of the appellant, was in charge of the unit and was having overall control of the affairs of the unit. It was, therefore, rightly held that he was aware that the goods clandestinely manufactured and removed in the name of his partnership firm were liable to be confiscated." 4.16 Appellant has not challenged any of the findings recorded by the Commissioner in the impugned order. When the appellant has in his statement recorded under section 14 while giving the details of working of the unit have....
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....¾ दिनांक 19/02/2016 (मकान न° 873, गली न° 14 मंडोली à¤à¤•à¥à¤¸à¤Ÿà¥‡à¤‚शन दिलà¥à¤²à¥€) पंच - 1 शà¥à¤°à¥€ सà¥à¤–बीर सिंह उमà¥à¤° ४२ वरà¥à¤·, पà¥à¤¤à¥à¤° शà¥à¤°à¥€ राजबीर सिंह निवासी म° न° 108 गली न° 06 सीलमपà¥à¤° दिलà¥à¤²à¥€ पंच- 2 शà¥à¤°à¥€ राजकà¥à¤®à¤¾à¤° उमà¥à¤° ३० वरà¥à¤·, पà¥à¤¤à¥à¤° शà¥à¤°à¥€ कृपाल सिंह निवासी गà¥à¤°à¤¾à¤® à¤à¤£à¥à¤¡à¥‡à¤ªà¥à¤°, साहिबà¤....
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....¥€ à¤à¤•à¥à¤¸à¤Ÿà¥‡à¤‚शन दिलà¥à¤²à¥€ को विà¤à¤¾à¤— के पतà¥à¤° सV (Adj)/ Pintu /GZB/166/14/849 दिनांक 17.02.2016 को पà¥à¤°à¤¾à¤ªà¥à¤¤ कराने हेतॠकी जाने वाली कारà¥à¤¯à¤µà¤¾à¤¹à¥€ में गवाह बनें कà¥à¤¯à¥‹à¤‚कि पूरà¥à¤µ में इस तरह के पतà¥à¤° उनà¥à¤¹à¥‡à¤‚ पà¥à¤°à¤¾à¤ªà¥à¤¤ नहीं कराये जा सके । अधिकारीयों के अनà¥à¤°à¥‹à¤§ को सà¥à¤µà¥€à¤•à¤¾à¤° करते हà¥à¤ हम ....
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....¤¸à¥à¤¥à¤¿à¤¤à¤¿ में पतà¥à¤° सv (Adj) / Pintu / GZB / 166 / 14 / 849 दिनांक 17.02.2016 को उस घर की दीवार पर दरवाजे के समीप चिपका दिया ताकि घर में आने जाने वाले उसे पढ़ सकें । समसà¥à¤¤ कारà¥à¤¯à¤µà¤¾à¤¹à¥€ शांतिपूरà¥à¤µà¤• व विधिपूरà¥à¤µà¤• लगà¤à¤— सायं 4.30 बजे तक समापà¥à¤¤ हो गयी और अधिकारी वहां से चले गठ। हम अधि....
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....खाकर अपना परिचय देते हमसे अनà¥à¤°à¥‹à¤§ किया हम उनके दà¥à¤µà¤¾à¤°à¤¾ शà¥à¤°à¥€ पिंटू तà¥à¤¯à¤¾à¤—ी à¤à¤µà¤‚ शà¥à¤°à¥€ पà¥à¤°à¤¦à¥€à¤ª तà¥à¤¯à¤¾à¤—ी को विà¤à¤¾à¤— के पतà¥à¤° सV (à¤à¤¡à¥à¤œ) / Pintu Document 5 /GZB/166/14/849 दिनांक 17.02.2016 जो कि अधीकà¥à¤·à¤• (नà¥à¤¯à¤¾à¤¯ निरà¥à¤£à¤¯) केंदà¥à¤°à¥€à¤¯ उतà¥à¤ªà¤¾à¤¦ शà¥à¤²à¥à¤• के दà¥à¤µà¤¾à¤°à¤¾ जारी किया गया है को पà¥à¤°à¤¾à¤ªà¥à¤¤ करा....
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....¸à¤•à¤¾ तो अधिकारीयों हमारी उपसà¥à¤¥à¤¿à¤¤à¤¿ में पतà¥à¤° सV (à¤à¤¡à¥à¤œ) / Pintu / GZB /166/14/849 दिनांक 17.02.2016 को गली न 15 कृषà¥à¤£à¤¾ विहार फेज 1 सेवाधाम लोनी गाजियाबाद में गली के मà¥à¤¹à¤¾à¤¨à¥‡ पर चिपका दिया ताकि गली में आने जाने वालों की नज़र उस पर पड़ सके। इस पà¥à¤°à¤•à¥à¤°à¤¿à¤¯à¤¾ के दौरान किसी à¤à¥€ à¤....
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....¤°à¥€ मेरे दà¥à¤µà¤¾à¤° बिना किसी नाम के चलायी जा रही है। यह फैकà¥à¤Ÿà¥à¤°à¥€ किसी à¤à¥€ विà¤à¤¾à¤— में पंजीकृत नहीं है। हमारी फैकà¥à¤Ÿà¥à¤°à¥€ में फैकà¥à¤Ÿà¥à¤°à¥€ में पीतल की छड़ और गैस चूलà¥à¤¹à¥‡ की बॉल की फोरà¥à¤œà¤¿à¤‚ग बनाते हैं। शà¥à¤°à¥€ राजू यादव हमारी फैकà¥à¤Ÿà¥à¤°à¥€ में फोरमैन है....
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....¥à¤°à¥€ राजपाल तà¥à¤¯à¤¾à¤—ी ने मेरे काम करने के लिठशà¥à¤°à¥€ गजेंदà¥à¤° तà¥à¤¯à¤¾à¤—ी जी से दिलवाई थी। यहाठपर फैकà¥à¤Ÿà¥à¤°à¥€ का कारà¥à¤¯ मैं और मेरे बड़े à¤à¤¾à¤ˆ देखते हैं। मà¥à¤–à¥à¤¯à¤¤à¤¾ मैं सारा कारà¥à¤¯ करता हूठलेकिन मारà¥à¤•à¥‡à¤Ÿà¤¿à¤‚ग के कारà¥à¤¯ में मेरे बड़े à¤à¤¾à¤ˆ मदद करते हैं। ....