TaxTMI 
TaxTMI 
2024 (3) TMI 636
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....1AC (iv) I, also uphold the penalty of Rs.1,00,000/- each on the appellant-2 & the appellant-3, respectively (v) I, hereby, drop the penalty of Rs.1,00,000/- imposed upon the appellant-1 under Rule 173 Q of the erstwhile Central Excise Rules, 1944" 1.2 Original authority has by the order in original No 22/ADC/NOIDA/2011-12 dated 30.12.2011 held as follows: "ORDER (1) I, hereby , confirm demand of Central Excise duty amounting to Rs. 8,26,886/- under the proviso to Section 11A of the Central Excise Act, 1944 and drop the rest of demand i.e Rs 20,52,735/-; (2) I, order appropriation of Rs.59,360/- which has been paid by SIPL vide TR-6 Challan No. 20 dt. 13.09.01 (3) I confirm the demand of interest on the confirmed dues at appropriate rates in terms of Section 11 AB of the Central Excise Act, 1944. (4) I, hereby, impose penalty of 8,26,886/- on M/s. SIPL under Section 11AC of the Central Excise Act, 1944. (5) I, also impose a penalty of Rs. 1,00,000/- on M/s. SIPL under Rule 173Q of the erstwhile Central Excise Rules, 1944 (6) I, hereby, impose penalty of Rs. 1,00,000/- on Sh. Sanjeev Lamba under rule 209A of the erstwhile Central Excise Rules, 1944 (7) I, also imp....
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....d 25.02.2008, remanded the matter back to original authority for de novo adjudication. 2.5 Original authority vide the order in original referred in para 1 again adjudicated the case. Aggrieved appellant filed the appeal before Commissioner (Appeal) who has vide the impugned order referred in para 1 disposed of the appeals filed by the appellants. 2.6 Aggrieved appellant have filed these appeals. 3.1 I have heard Shri Navin Mullick Advocate for the appellant and Shri Manish Raj Authorized Representative for the revenue. 3.2 Arguing for the appellant learned counsel submits that: Demand of Rs 1,06,687.52/- in respect of central excise invoice no. 16 and 18, both dated 20.04.2001 is based on presumptions and surmises and cannot be sustained. Demand of Rs 90,720/- relating to the clearances to M/s Sita Resorts - is made on the basis of proforma invoices and the statement of their excise in charge Sh D L Soni. In fact appellant had paid the excise duty in respect of the clearances made to M/s Sita Resorts against proper excise invoices. However in absence of any tangible evidence to prove the clandestine clearance against these proforma invoices the demand has been confirmed ar....
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....g with the submissions made in appeal and during the course of arguments. 4.2 Impugned order records following findings: "4.1 I have carefully gone through the facts and evidence on record and the submissions made by the appellants in the grounds of appeals as well as submissions put forth by the respondent department during the course of personal hearing 4.2 The issues involved in the case are (i) whether duty confirmed by the adjudicating authority is justified (ii) whether imposition of penalty on all the appellants is justified and (iii) whether appropriation of duty already deposited is justified 4.3 Regarding the confirmation of demand of Rs. 1, 06, 687.52, it is observed that the appellant-1 have submitted that the figure in the respective Central Excise Invoices No 16 & 18, both dated 20.04.2001 were erroneously written by the Excise Clerk and which in fact, in Total should have been 44, as appearing in RG.-1 Register. It can be appreciated that no man of prudence will declare in the Invoices the quantum of Goods which are less than the figure for removal appearing in R. G. -1 Register. In any case The Appellant-1 only received the consideration appearing in their ....
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....aid figure of the panchnama was never retracted by the appellant. Hence I do not find any merit in the contention of the appellant in this regard and I uphold the confirmation of duty amounting to Rs. 70,320/- 4.6 The demand of Rs 5,59,158.48 has been raised on the ground that the appellant-1 has wrongly availed SSI exemption under Notification No. 8/99 dt. 28.02.99 during 2001-02. As per the Show Cause Notice, it was alleged that the appellant-1 had removed excisable goods valued at Rs.4,98, 20,925/-during the year 2000-01, and hence, in terms of condition No. (vi) of the said notification, exemption was not available to them in the subsequent financial year i.e. 2001-02. As per the said condition, the SSI exemption was available in a financial year only if the aggregate value of clearances does not exceed Rs. 3 crore in the. preceding financial year. In this regard, The Appellant-1 submitted that "they had been availing Benefit of Notification No. 9/2001 even during the year 2001-2002 and where no Show Cause Notice has been issued within a normal period of one year, the demand is barred by limitation. The adjudicating authority failed to appreciate that even though any demand m....
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....dy deposited, I observe that duty deposited by the appellant-1 was liable to be adjusted against the demand of duty confirmed against the appellant-1. Accordingly I uphold the appropriation of duty of Rs. 59,360/ which shall be adjusted against the demand of duty confirmed against the appellant -1 4.8 Regarding imposition of penalty, I find that the appellant-1 has evaded payment of duty by clandestinely removing the excisable goods manufactured by them. On the basis of the facts and circumstances, as discussed in the foregoing paras, I also hold that they have rendered themselves liable to penalty under rule 173 Q of the Central Excise Rules, 1944 read with Section 11AC of the Central Excise Act, 1944. However I find no justification in the imposition of separate penalty under Rule 173 Q of the erstwhile Central Excise Rules, 1944 for the same offence 4.9 Regarding the imposition of penalty on appellant-2 (Continental Furnishers), it is observed that Shri Lamba was CEO of appellant-2. Further Mr. Dinesh Yadav, project 49 manager of the appellant-2 in his statement dated 03.10.2001 interalia stated that goods dispatched from appellant-1 to the customer's site directly were....
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......... 13.3 .... S.No 3 of Annexure-C-3 is concerned, I observe that SIPL have not explained the circumstances as to how the figure was shown as 10 & 5 in the invoice No. 16 & 18 (both dt. 20.04.01). for the figure 44 nos. They have also not satisfactorily explained as to how the same is in order as far as return for the quarter ending June‟01 is concerned. Therefore 1 hold that the allegation based on material evidence sustain in the absence of any counter evidence having been produce and thus the demand of Rs. 1,06,687.52 is justified in this case. With regard to the demand made against S.No.4, I find that the same is based on the basis of the statement of Shri D.L Soni and the proforma invoice (Annexure A-5 ). I observe that the statement of Shri Soni has not been retracted so far. Therefore, the same is a piece of evidence corroborating the facts contained in the document named by SIPL as proforma invoice. In view of the aforesaid pieces of evidence, I hold that there is no merit in the submission of SIPL and hence demand of duty duty of Rs.90720/- sustains. (iv) With regard to S.No.5, contention of SIPL is that the value of work station as per panchnama dated 4.9.2001 i....
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.... wrongly availing the SSI exemption, is recoverable from them by invoking extended period or not. As to this dispute, I am of the considered view that extended period can be invoked for demand of duty in all cases where any of the ingredients specified Under the proviso to Section 11A(1)of Central Excise Act, 1944 is present. In my view., if any of such ingredients is present in a case, then the action for recovery of the duty short paid/ not paid can be taken within 5 years of the relevant date irrespective of the fact as to when the fact of short payment/ non payment of duty comes in the notice of the Department. This is so because nowhere has it been required to take action for recovery of the duty evaded immediately after the evasion comes to the knowledge of the Department. In the instant case, there is no doubt about the fact that SIPL evaded payment of duty. The offence of evasion committed by them is not diluted because the fact of evasion had been reflected in the RT-12 returns filed by them. 14.3 I observe that in the case of Asia Insulated Wires Pvt. Ltd Vs CCE, reported in 1996|66) ECR 479(T), the assessee was charging Excise duty in respect of the goods sold from the....
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....essee the Department can demand the duty so short levied or short paid within a period of five years from the date of payment i.e the date of clearances of such goods" (emphasis supplied) 14.4 The Hon‟ble Tribunal also made the following further observations: ".......it is very clear that at the time of clearances of goods they had suppressed the fact of charging higher duty from the customers while the invoices were made. The subsequent knowledge gathered by the Department from their bills as per the aforesaid correspondences would not confiscate the limitation of five years available to the Department in terms of the plain reading of Section 11A of the Central Excise and Salt Act, 1944. It may be mentioned that section 11A does lay down that notice has to be issued by the Department within six month of the knowledge of the suppressed fact. Accordingly we do not find any substance in the plea of the appellants herein. The Show Cause Notice has been issued in time invoking rightly the longer period of limitation of five years." (emphasis supplied) 14.5 In the instant case, SIP's intention to evade payment of duty existed at the time of clearance of each consignment e....
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....ral Excise Act, 1944 by invoking extended period of limitation. 15.1 The facts and circumstances, as discussed in the foregoing paras show that SIPL have contravened, with intent to evade payment of duty, the following rules of Central Excise Rules,1944; (i) Rule 9(1) & 173 G inasmuch as they had removed excisable goods without payment of proper duty leviable thereon; (ii) Rule 52A inasmuch as they did not incorporate the proper and correct details of the goods in the invoices issued by them; (iii) Rule 53 inasmuch as they did not maintain RG-1 register properly; (iv) Rule 173 B inasmuch as they did not declare and disclose proper and correct description of all the goods manufactured by them; and (v) Rule 173 F inasmuch as they did not assess and properly determine the correct amount of duty payable at the time of removal of the goods from the factory 16 The facts and circumstances, as discussed in the foregoing paras also show that, besides evading payment of duty by wrongly availing SSI exemption, they evaded payment of duty by clandestinely removing the excisable goods manufactured by them. Therefore, the Central Excise duty amounting to 8,26,886/- evaded by them ....
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....that Continental was aware through Shri Lamba about the nature of the goods manufactured by SIPL and dealt with by Continental. In other words, it can be said that Continental was aware of the fact that the offending goods received by them from SIPL were liable for confiscation. For the aforesaid reasons, Therefore Continental too have rendered themselves liable for penalty Under rule 209 A of the Central Excise Rules, 1944. 19,. In view of the discussion and findings, supra, I hold that that out of the demand of total amount of Rs.28,79,621 /-, the demand of 8,26,886/- sustains and the same is recoverable from SIPL Under the proviso to Section 11A of the Central Excise Act, 1944 by invoking extended period. Out of the said amount SIPL has paid Rs.59,360/- vide TR-6 Challan No. 20 dt. 13.09.01 which is liable for appropriation against the aforesaid liability The rest of demand i.e Rs 20,52,735/-is iable to be dropped. I further hold that SIPL have rendered themselves liable to penalty under rule 173 Q of the Central Excise Rules, 1944 read with Section 11AC of the Central Excise Act, 1944 and Sh. Sanjeev Lamba and Continental have rendered themselves liable to penalty under rule 20....
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....ing into existence of 5 number of Storage Cabinets as an immovable structure at the site of HFCL. The Central Excise Invoices referred to the description for which order was placed on the appellants giving the number of complete credenza/ storage cabinets supplied by the appellant. To ascertain the correctness of the claim no enquiries were conducted from HFCL in respect of the alleged discrepancies. Further the transaction/ Assessable Value for 44 pieces, as appearing in the RG-I Register is the same as appearing in the Central Excise Invoice No 16 and 18, both dated 20.04.2001. In view of the above revenue authorities have totally failed to adduce evidence to show that appellant had cleared 44 pieces against these invoices. The order for confirming the demand by taking 44 number as appearing in RG-1 register as complete credenza/ storage cabinets is contrary to the facts on record and no effort has been made to ascertain true facts by making any enquiry/ investigation at the customer end. I do not find any merits in this demand. 4.6 Demand of Rs 90,720/- for the goods alleged to be cleared to Sita Resorts on the basis of the proforma invoices. The facts on record clearly show t....
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.... Soni, Manager (Excise) informed that the same was not entered in the RG 1 register of the company and they have not paid any duty on them. The details of stock verification are listed in Annexure B to this Panchnama. The value of goods mentioned in Annexure B was ascertained from Shri Partha Pratim Gosh, Coordinating Architect." The facts as recorded in the Panchnama are not disputed. The fact that appellants have removed the goods for consumption by installing them in their own office and canteen premises is not in dispute. In my view the removal of the goods for personal consumption within the office and canteen premises of the appellant is removal of the goods as per the provisions of Central Excise Law. The value as has been indicated in the Panchnama has been ascertained from the coordinating architect. Both the authorities have concluded similarly in respect of this demand and I also do not find any merits in the submissions made by the appellant in this respect. Thus I confirm this demand along with the interest as applicable. 4.8 Demand of Rs 5,59,158.48 for the period 06.04.2001 to 21.08.2001 in respect of the goods cleared by wrongly availing the benefit of SSI exempti....
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....ful misstatement 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. The Tribunal came to the conclusion that the facts referred to hereinbefore do not warrant any inference of fraud. The assessee declared the goods on the basis of their belief of the interpretation of the provisions of the law that the exempted goods were not required to be included and these did not include the value of the exempted goods which they manufactured at the relevant time. The Tribunal found that the explanation was plausible, and also noted that the Department had full knowledge of the facts about manufacture of all the goods manufactured by the respondent when the declaration was filed by the respondent. The respondent did not include the value of the product other than those falling under Tariff Item 14E manufactured by the respondent and this was in the knowledge, according to the Tribunal, of the authorities. These findings of the Tribunal have not been challenged before us or before the Tribunal itself as being based on no evidence." In case of Continental Foundation Jt. Venture [2007 (216) ELT 177 (S....