AI Drafter 
TaxTMI 
TaxTMI 
2024 (5) TMI 1109
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....ct 1985. For ease of reference the appellants are referred to as Coronation Group of Companies, (hereinafter also referred to as "CGC"). 2. On intelligence received from the Directorate General of Goods & Service Tax Intelligence (DGGI), Chennai Zonal Unit, which was further developed by the officers of DGGI, Madurai Regional Unit, indicated that CGC indulged in evasion of Central Excise duty and GST on clearance of fireworks/crackers by receiving part of the consideration/sales proceeds in cash by various means including receiving commission through agents/conduits/local hawala brokers engaged by them. The amounts received in cash by CGC did not form part of transaction/dutiable value in the bills/invoices issued by them, and therefore escaped excise duty. 3. Simultaneous search operations were conducted on 8.10.2020 at several premises connected to CGC including their head office premises at Sivakasi. The officers of the department recovered various incriminating documents, records, electronic gadgets and these were seized under Mahazar proceedings, on the reasonable belief that the same would be useful for further investigation. 4. An amount of Rs. 1,82,25,000/- was sei....
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....cated that Shri. K. Jeyasankar, masterminded the entire practice of issuing undervalued invoices and clearing final products without issuance of invoices in collusion with others. Shri. K. Jeyasankar, was arrested and remanded to Judicial custody on 17.02.2021, thereafter he was released on bail. The appellants made deposit of Rs.2.67 crores during investigation. 7. According to the department the modus operandi adopted by the appellants for evasion of Excise duty is as below: - 7.1 On receipt of orders from their dealers orally through mobile phones or by WhatsApp messages or in emails or through sales representatives, Shri. K. Jeyasankar will give instructions to their partner, Shri K. Jeyakumar, to raise invoices offering various discounts for different products. Such discounts on different products on different dealers will be decided by Shri K. Jeyasankar in consultation with his father Shri. P. Kanagavel. On raising the invoices, the same would be communicated and handed over to the dispatch team in their factory to arrange for packing the products as per invoice and for loading in the transport carrier for dispatch. Fireworks can be sold by the dealers at much higher r....
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....ements. 7.4 Based on the above, show cause notices were issued to the appellants proposing to demand the short-paid excise duty along with interest and for imposing penalty. After due process of law, the original authority passed the impugned order against which the appellants have preferred these appeals. The operative portion of the impugned order reads as below: 33. ORDER 33.1 M/s The Coronation Fireworks Factory [SCN No.04/2O21-C.Ex] i) I confirm the demand of differential Central Excise duty of Rs.1,72,56,579/- (Rupees One crore Seventy Two Lakhs Fifty Six Thousands Five Hundred and Seventy Nine Only) [Rs.1,38,05,263/- in respect of Central Excise Registration Number AAAFT5790QXMOO1 and 34,51,316/- in respect of Central Excise Registration Number AAAFT5790 QXMoo3, (in proportion to their assessable value declared in the ER1 Returns)being central excise duty not paid by M/s The Coronation Fireworks Factory, collected/ received in cash from the dealers/customers towards differential value between the actual transaction/taxable value of the manufactured goods cleared/supplied & lesser/suppressed transaction/taxable values reported in the invoices and....
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....he demand of differential Central Excise duty of Rs.1,95,30,192/- (Rupees One Crores Ninety-Five Lakhs Thirty Thousands One Hundred and Ninety Two Only) being central excise duty not paid by M/s Sri Coronation Fireworks Private Limited, collected / received in cash from the dealers/customers towards differential value between the actual transaction/taxable value of the manufactured goods cleared/supplied & lesser/suppressed transaction./taxable values reported in the invoices and value of the manufactured final products supplied /c1cared/sold without issuance of invoices under Section 11A(4) of the Central Excise Act 944; ii) I drop the proceedings being central excise duty not paid by M/s Sri Coronation Fireworks Private limited on suppressed / short declared in the ER1 Returns filed by them when compared with total value of the invoices issued by them during the period from August 2016 to June 2017 under Section 11A(4) of the Central Excise Act 1944; iii) I confirm demand of interest as applicable on the Central Excise duty amount mentioned at (i) above under Section 11AA of the Central Excise Act 1944; iv) I impose a penalty of Rs.1,95,30,192/- (Rupees....
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.... value of the invoices issued by them during the period from August 2016 to June 2017 as detailed in Para No.29.15 should not be treated as suppressed/short declared assessable values during the period under Section 11A(4) of the Central Excise Act 1944; iii) I confirm demand of interest as applicable on the Central Excise duty amount mentioned at (i) and (ii) above under Section 11AA of the Central Excise Act 1944; and iv) I impose a penalty of Rs.31,32,722/- (Rupees Thirty one Lakh Thirty two Thousand and Seven Hundred and Twenty two Only), being central excise duty not paid by M/s Naya Carnation Fireworks, collected / received in cash from the dealers/customers towards differential value between the actual transaction/taxable value of the manufactured goods cleared / supplied & lesser / suppressed transaction / taxable values reported in the invoices and value of the manufactured final products supplied /cleared/sold without issuance of invoices under Section IIAC of the Central Excise Act 1944. with an option to pay penalty equal to 25% of the penalty imposed if the entire amount of excise duty along with interest and reduced penalty is paid within 30 days fro....
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.... (v) I order to appropriate the voluntarily discharged amount of Rs 43,62,229/- (Rupees Forty-Three Lakhs Sixty-Two Thousand Two Hundred and Twenty Nine only) already paid by M/s Bee Cee Fireworks Industries, Sivakasi vide CIN No. 20201027112605304435 dated 27.10.2020 against the confirmed demand at para no. 33.4 (i); and (vi) Since I have already imposed penalty under Section 11AC of Central Excise Act, 1994, I consider that it is not required to impose penalty under Rule 26 & 27 of the Central Excise Rules, 2002 again for the same offence on the company, therefore I drop the penalty proposed under Rule 26 & 27 of the Central Excise Rules, 2002; 34. Penalty for Key persons 34.1 (i) I impose penalty for Shri K. Jeyasarikar, Residence: No. 122, Velayutham Road, Sivakasi - 626123, of Rs.10,00,000/- (Rs. Ten Lakhs only) for the acts of commission and/or omission (as discussed in above paras), separately in terms of Rule 26 of the Central Excise Rules, 2002. (ii) I drop penalty for Shri K. Jeyasankar, Residence: No.122, Velayutham Road, Sivakasi 626123 for the acts of commission and/or omission (as discussed in above paras), separately in terms o....
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.... drop penalty for Shri Hitesb Jain, 10C, Gopala Kothan Street, Madurai 625001 & Shri P. Vimal Kumar Jain, No. 138, North Avani Moola Street, Madurai- 625001 for there is no involvement of planning and executing in the current proceedings during the impugned period 35. The Show Cause Notice No 4,5,.6, & 7 /2021 C-Ex dated 03.09.2021 issued to M/s The Coronation Fireworks Factory, M/s Sri Coronation Fireworks Private Limited, M/s Naya Carnation Fireworks, and M/s Bee Cee Fireworks Industries of Sivakasi by the Additional Director General of GST Intelligence, Coimbatore stands disposed of, accordingly. 8. The Ld. Counsel Sr. S. Jaikumar appeared and argued for the appellant. It is submitted that the origin of these proceedings are based out of an investigation conducted against M/s. Standard fireworks Pvt Ltd, Sivakasi (hereinafter referred to as SFW) by the Directorate General of GST Intelligence (hereinafter referred to as DGGI), Chennai Zonal Init, Chennai during October 2017. The said investigation resulted in a Show Cause Notice against M/s. SFW. During the said investigation, the DGGI recovered few electronic evidences, namely a laptop and a pendrive allegedly from t....
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....alaji 1 K Jeyakumar 1 2. Sri Cornation Fireworks Pvt Ltd Private Limited P Kanagavel 40.7 P Kanagavel (HUF) 14.3 K Jeyasankar 15 K Balaji 15 K Jeyakumar 15 3. Naya Carnation Fireworks Partnership K Jeyasankar 2 K Balaji 49 K Balaji (HUF) 49 4 Bee Cee Fireworks Industries Partnership K Jeyakumar 49 K Jeyakumar (HUF) 50 K Balaji 1 8.4 For ease of argument, the issues as framed by the Adjudicating authority (AA) in the impugned Order-in-Original (OIO) are referred to as below; • Whether the evidences, including electronic evidences, recovered by the investigating officers during earlier proceedings for another company can be considered and relied as evidence in a subsequent investigation and proceedings initiated against the noticees namely CGC and others. • whether the evidences more particularly the electronic evidences have complied with the provision of Section 36B of the Central Excise Act, 1944 (hereinafter referred to as "CEA") to be considered as an evidence for the purpose of demand of Central Excise Duty under the CEA? • Whether the ....
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....complete go-by to the statutory requirements provided under section 36B of CEA which stipulates various conditions for admissibility of electronic evidence admissible in proceedings. 8.7 AA, in para 29.10 of the impugned OIO has observed that, as the said electronic evidences namely the laptop/pendrive were recovered in the earlier proceeding against M/s. SFW and the said proceeding against M/s. SFW had culminated by way of a settlement under the SVLDRS scheme, the same has to be considered as compliance to section 36B of CEA. The Ld. Counsel submitted that the above conclusion of the AA is not only patently illegal but also against the spirit of SVLDRS scheme as spelt out by the CBIC in their circular no 1071/4/2019-CX dated 27.08.2019 and also the related FAQ (Q 42) released by the department. The AA has not only ignored the legal provisions but has also disregarded all judicial pronouncements in this regard cited by the appellant in their reply. 8.8 It is also a curious observation of the AA in para 29.10 that "the consistently inconsistent depositions of B. Saravanan right through the proceedings has not only rendered his depositions as unstable and unreliable thus making....
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....artment to hold that the electronic evidences are credible evidences in compliance with section 36B of CEA. Notwithstanding the above, it is very relevant and pertinent to mention that even the retrieved and relied upon documents are under cloud. The following communications for seeking the retrieved documents and its corresponding authenticity during the course of investigation are noteworthy in this regard: a) Letter dated 03.01.2022 was issued by the authorised representative of the appellants wherein at para 3.3 (ii) a request was made for the proceedings documented while retrieving data of ledger from the laptop of Shri. B. Saravanan which is relied upon as RUD No. 38 of SCN. In response to the said letter the deputy director DGGI, Madurai vide reply dated 02.02.2022 at para 7 stated that the print outs referred as RUD 38 in the Show cause notice was retrieved by Government forensic laboratory. b) Further another Letter dated 09.02.2022 issued by the authorised representatives of the appellants wherein at para 6.2 a request was made to provide documents relating to retrieval of data from the laptop at the Government Forensic Laboratory. No reply was received ....
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.... 8.15 Further the AA has also dismissed the various depositions made during cross examination by the witnesses giving flimsy reason that they have retracted after a lengthy passage of time. The denial of allegations by the witness during cross-examination cannot be considered as a retraction statement. In this context the AA has not only ignored the well settled legal position that such cross examination would be the first legitimate opportunity for the witnesses to come out in open and give fair deposition, but has not also taken cognisance of the very pertinent and relevant facts namely; A) The entire proceedings were during the thick of pandemic, B) No copies of the statement were given till the Show Cause Notice was issued, C) There was an impending threat of arrest induced by the investigation supported by the arrest of Sri K Jeyshankar in the proceedings and, D) The untimely and unexpected demise of Sri Kanagavel the founder of CGC. Ignoring all the above, the Commissioner just brushed aside the entire depositions obtained during cross-examination. 8.16 Last but not least, the SCN has proposed a novel method of determination of diffe....
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....stration separately. However, the demand is raised against two registration numbers only. All the four group companies have been issued SCNs. Again, the first para of the operative portion of the order, the AA has stated that the demand is confirmed for goods supplied without issuing invoices also. However, in last part of para 29.13 it is observed that there are no clearances made by appellants without issuing invoices. 8.19 The appellants have not indulged in any undervaluation of goods. They have discharged excise duty and filed ER-1 returns. The entire case is made up by the department after the case against M/s. SFW Ltd ended up in opting for SVLDRS. It is prayed that the appeals may be allowed. 9. The Ld. AR Ms. Anandalakshmi Ganeshshram appeared and argued for the department. It is submitted that the data from the seized electronic gadgets were retrieved under mahazar proceedings following due procedures as per Section 36B of CE Act, 44 and relevant provisions of CGST Act, 2017 read with Indian Evidence Act, 1872 & Information Technology Act 2000 and were stored in the external had discs for further investigation and seized electronic gadgets were sealed once again aft....
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....ormation supplied to the computer in the ordinary course of the said activities. (3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether- (a) by a combination of computers operating over that period; or (b) by different computers operating in succession over that period; or (c) by different combinations of computers operating in succession over that period; or (d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly. (4) In any proceedings under this Act and the rules made thereunder where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,-....
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....e question of whether the confession statement can be relied upon to convict the accused in spite of subsequent retraction, The Hon'ble Court answered in affirmative and accordingly the retracted statements were relied upon. It was held that the retractions were made after almost a year and were only an afterthought and were not raised at the first available opportunity. This judgement is applicable to the present case. 9.6 In this connection reliance is also placed on the judgement of the Hon'ble Supreme Court in the case of Telestar Travels Pvt. Ltd., Vs. Special Directory of Enforcement [2013 (289) ELT 3 (SC)] in which it was held that if the statements are based on consideration of relevant facts and circumstances and found to be voluntary, they can be relied on irrespective of retraction and when subsequent retraction was mere afterthought to escape consequences of the violations committed. These judgement are squarely applicable to the present case. 9.7 It is submitted that it is clear that CGC, their directors/partners, employees and Sales Representatives colluded among themselves and also with their dealers and commission agents engaged by them and ensured that excisa....
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....s framed by the adjudicating authority as stated in para 29.1 of the impugned order, and are reiterated as under: a. Whether the evidences, including electronic evidences, recovered by the investigating officers during earlier proceedings for another company can be considered and relied as evidence in a subsequent investigation and proceedings initiated against the noticees namely CGC and others. b. whether the evidences more particularly the electronic evidences have complied with the provision of Section 36B of the Central Excise Act, 1944 (hereinafter referred to as "CEA") to be considered as an evidence for the purpose of demand of Central Excise Duty under the CEA? c. Whether the quantification of demand as arrived in the Show Cause Notice vide para 7.1 to 7.17 adopting percentage of cash to invoice value is correct or the same needs to be arrived at only based on the evidences available on record? d. Whether demand of Central Excise Duty on CGC on the amounts collected in cash over & above the value is correct or not; e. Whether interest to be demanded; and f. Whether suppression clause is to be invoked and consequently pe....
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....mently argued that the electronic evidence (pen drive & laptop) are not admissible in evidence. Firstly, for the reason that they were recovered in an earlier proceeding to which the appellant was not a party. Secondly, because the procedure contemplated under Section 36B has not been complied. 12.3 In para 29.9 and 29.10 the adjudicating authority has discussed these contentions of the appellant. Undisputedly, the pen drive and lap top were not recovered during the investigations initiated against the appellant. So also, it is admitted by department that the proceedings against M/s Standard Fireworks was closed after the issuance of Show Cause Notice (dt. 27.10.2018), as the main noticee M/s Standard Firework and co-noticee, Shri B. Saravanan and others had settled the matter under the SVLDR Scheme. The argument put forward by appellant that the evidence in the nature of pen drive and laptop collected in an earlier investigation cannot be used in the current proceeding has been brushed aside by the adjudicating authority by observing in the impugned order, that though the appellant contend that the evidence cannot be used in a subsequent proceeding, there is no legal bar and th....
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....ndertaken during the search and seizure of the material objects. It is a document to ensure that there was no occasion for fabricating or tampering of evidence. Section 12F deals with the power of officers for search and seizure. Sub-section (2) of Section 12F provides that the provisions of the code of Criminal Procedure Code 1973 relating to search and seizure shall, so far as may be, apply to search and seizure under this Section. 12.6 On perusal of mahazar dt. 26.10.2017 of the earlier proceedings, the pen drive was seized and kept in a brown colour cover duly signed by Shri B Thirumani Selvan, Shri B. Saravanan and by the officers. The lap top seized was kept in a carton box duly sealed with paper seal containing the signature of Shri B Thirumani Selvan, Shri B Saravanan and the officers of the department. Some loose sheets as made up file 1 to made up file 6 and mobile phones of Shri B Saravanan and Shri Thrumani Selvan were also seized. 12.7 After such seizure and recording of statements in regard to investigation against M/s Standard Fire Works Ltd., a show cause notice was issued to M/s. SFW and others which was concluded or closed after the noticees there in opted f....
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....rding the procedure for opening and retrieving data from mobile phones seized in earlier proceedings on 26.10.2017. The relevant part of this mahazar reads as under: "Today, i.e, on 12.10.2020 at about 05.30 PM, we, the above mentined witnesses were called upon by the Senior Intelligence Officer and other officers attached to the Directorate General of Goods & Service Tax Intelligence, Madurai Regional Unit to witness the opening and retrieval of data proceedings including the whatsapp chats from electronic gadgets which were seized earlier under mahazar proceedings dated 26.10.2017 from the office premises of M/s. Sv.P.N.S.N. Balasivaji & Co., 140/1, Dr. Ambedkar Street, Virudhunagar - 626001 by the officers of DGGSTI, Chennai Zonal Unit, to which we have also agreed upon. The said officers further informed that on the reasonable belief that the aforesaid seized electronic gadgets (i.e. two numbers of Mobile Phones)" Thereafter, the officers packed the aforesaid seized Mobile Phones carefully and sealed the same with adhesive tapes & paper sealed the cover. We, the witnesses, Shri. B. Saravanan and Shri R. Surreandar and the Senior Intelligence Officer have affix....
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....in the presence of independent witnesses and parties of present proceeding for opening the sealed Master Copy of pen drive and laptop. We are in the dark as to whether there was a master copy, who was in custody of it, who opened and examined it for second time etc. All these casts heavy shadow on the evidentiary value of the pen drive and lap top seized in 2017 and used as evidence in this proceedings. 12.12 The appellant vide letter dated 03.01.2022 and 05.-01.2022 issued a preliminary reply to the show cause notice. In these letters the appellant requested permission to cross examine the mahazar witnesses who participated in imaging (retrieval of data) as well as cross examination of technical experts (R. Surendar, R.Karthick- Forensic experts). However, the request of appellant was denied as per letter of adjudicating authority dated 21.02.2022. This letter of adjudicating authority reads as under: - "2. In this regard it is seen that totally 8 Mahazars were drawn and 16 witnesses were there. The witnesses have not given any statement against the notices/co-noticees. Therefore you are requested to give the reason for your request for cross examination of all witness....
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.... Shri B. Saravanan would show how the department got his signature on these bound books. We are surprised. The affixing of signatures on the bound volume of books would not suffice compliance of Section 36B. 12.15 We will now examine the discussion of adjudicating authority as to the compliance of requirement of Section 36B of Central Excise Act. In para 29.3 of impugned order the adjudicating authority states as under: "The data from the seized electronic gadgets were retrieved under mahazar proceedings following due procedures as per Section 36B of Central Excise Act, 1944 and relevant provisions of Central Goods & Services Act, 2017 read with Indian Evidence Act, 1872 & Information Technology Act, 2000 and were stored in the external hard discs for further investigation and seized electronic gadgets were sealed once again after retrieving the data from them in the presence of the owners of the electronic gadgets and independent witnesses". 12.16 The procedure to be followed by the investigating officer while collecting evidence in the nature of electronic gadgets is provided in Section 36B of the Central Excise Act 1944 has been already noticed in para 8.1. As per....
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....44 for the retrieval of data from mobile phones. The certificate is stated to be, under Section 65 B of Indian Evidence Act, 1872. A sample of such certificate is as under: 12.18 Though some kind of certificate is produced for retrieval of data from mobile phones, there is no certificate at all for compliance of Section 36B for retrieval of data from the pen drive and laptop seized in 2017. At the cost of repetition, we say that we are in the dark as to how and when the data in these electronic items were retrieved, after the closing of the case against M/s Standard Fireworks Ltd. The Hon'ble Apex Court in the case of Anvar P.V. Vs P.K. Basheer 2017 (352) ELT 416 (S.C) considered the admissibility of electronic evidence and held that unless accompanied by certificate the print outs from computer and electronic items are not admissible in evidence. The relevant para of the judgement reads as under: - "14. Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied : (a) There must be a certificate which identifies the electr....
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....xtent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible." 12.19 Section 36B of Central Excise Act, 1944 is similarly worded as Section 65B of Indian Evidence Act 1872. The Hon'ble High Court of Delhi in the case of CCE Vs Jindal Nickel Alloys Ltd., 2020 (371) ELT 661 (Delhi) considered the admissibly of electronic evidence where the allegation was suppression of production of finished products and clearance of goods. The Hon'ble High Court held that the provisions of Section 36B are mandatory. The Court held as under: - "There is nothing to indicate compliance with the strict stipulations contained in....
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.... to the amount payable under the Scheme as to the matter and time period stated therein, and: (a) the declarant shall not be liable to pay any further duty/tax, interest, or penalty with respect to the matter and time period covered in the declaration. (b) the declarant shall not be liable to be prosecuted under the indirect tax enactment with respect to the matter and time period covered in the declaration; and (c) no matter and time period covered by such declaration shall be reopened in any other proceeding under the indirect tax regime." 13.1 In para 29.10 it is observed by the adjudicating authority that as Shri B Saravanan filed application under SVLDRS, it is an admission of the entire thing. That therefore, the integrity of the electronic evidence (pen drive and lap top) cannot be disputed and would suffice compliance of Section 36B of Central Excise Act, 1944. We are unable to fathom any logical or legal sense to this reasoning and as to how the application filed under SVLDRS would suffice compliance of Section 36B of C.E. Act, 1944. The findings of the adjudicating authority in para 29.10 of impugned order reads as under: Now I proce....
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....nstrued to be admission of liability. It is an amnesty scheme offered to reduce litigation. The assessee when opted under the scheme to give up litigation cannot be said to have admitted the liability. Shri B. Saravanan was cross-examined by an advocate in the earlier proceedings. In such cross-examination, he denied the allegations and even denied that the pen drive and lap top belong to him. The cross examination was in the presence of the Commissioner of Central Excise (adjudicating authority of earlier proceedings). He stated that the statements were not given voluntarily and were obtained from him by investigating officers of DGGI Chennai, under duress and co-ercion. Along with his reply to show cause notice in the present case, Shri. B. Saravanan furnished the copy of cross-examination. The deposition of Shri B. Saravanan and Shri B. Thirumaniselvan (Accountant) recorded in earlier proceedings on 25.9.2019 are noteworthy and reproduced as under: 13.4 From the above, it can be seen that in earlier proceedings these witnesses (noticees) have completely denied the allegations. In the present investigation the statement of Shri B. Saravanan and Shri. Thirumaniselvan were recor....
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....udicating authority on 02.11.2022. Shri B Saravanan has again denied the allegations and reiterated his deposition made during the cross-examination conducted in 2019. The relevant part is as under: Q.2. You had given various statements before the officers of the Department on 26.10.2017, 28.10.2017, 31.10.2017, 03.11.2017, 09.11.2017, 20.12.2017, 20.12.2017 and 21.12.2017 during a proceeding initiated against M/s Standard Fireworks (P) Ltd., which was subsequently clarified and disowned by you during a cross-examination conducted before the Commissioner of Central Excise on 25.09.2019, a copy of which is shown to you today. Kindly confirm the contents of the said cross-examination proceedings as to its truth and veracity. A.2 I have seen the record of the cross-examination dated 25.09.2019 as referred above and have appended my signature of having seen the same. I concur totally with the depositions made during the above said cross-examination and confirmed the same as true and correct. 13.7 The evidence tendered by the key witness from whom the pen drive and lap top were recovered shows that he has denied the allegations. The original authority has disregarde....
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....It is submitted by the Ld. Counsel that there has been no under valuation and no clearances have been made without issuing invoices. In the show cause notice there is an allegation that goods / fireworks have been cleared without invoices. However, in last sentence of para 29.13 of the impugned order the adjudicating authority has held that all clearances have been made only with invoices and such allegation in SCN is incorrect. The relevant part reads as under: .........Coming to the other allegation that the notices have cleared excisable goods without issuance of invoices, though there is an allegation, the same has neither been substantiated in the Show Cause Notice nor has any demand of duty been demanded on the said count. Hence, I am of the view that there is no clearance without issuance of invoices in the current proceeding. To amplify further, the entire Show Cause Notice is only for redetermination of the excisable goods manufactured and cleared by the notice for the period 01.08.2016 to 30.06.2017 and not for any removal of excisable goods without issuance of invoice. Accordingly, I hold that, though there is passing reference of clearance of finished products ....
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....aces. The quantification of duty on the basis of dealer price at Maharastra and Gujarat appears to be too extra ordinary method for quantification of duty and in appropriate too. 13.14 The appellants were engaged in manufacture of 'Practice Hand grenade' for supply to defence. There is no dispute with regard to supply of items to defence. 13.15 Before we part, it has to be noted that an amount of Rs.1,82,25,000/- was seized in cash from the residential premises of Shri K Jeyakumar. However, the show cause notice does not propose to confiscate the same or appropriate towards the excise duty. The adjudicating authority has also not appropriated towards duty liability. Therefore, it is to be understood that the seizure of cash is of no relevance or consequence to the case set up by the department. Consequently, the seized cash has to be refunded to the appellant, if not done already. So, ordered accordingly. 13.16 From the foregoing, we have to conclude that the demand of duty, interest, penalties cannot sustain. The impugned order is set aside. In the result, the appeals are allowed with consequential relief if any as per law. (Pronounced in open court on 20.03.2024) =....
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....hile in transit and there has been seizure of a pen drive from your office. Does this cash and pen drive belong to you? A3 No. Q4 If it is not yours then to whom does it belong? A4 The pen drive belonged to one Mr Anandavel who was a temporary employee with us and maintained by him. He is not in service with us any more. Apart from maintaining our company accounts he had also maintained some other accounts In the pen drive which was without our knowledge. I have no knowledge or any information about the same. Regarding the cash seized, the same does not belong to me but I was forced to admit that it belonged to me. Now I disown both the cash and the pen drive as they do not belong to me. Q5 Do you have any office in Mumbal? Is Mr Senthil Kumar an employee of your company? A5 No I don't have an office in Mumbai and I own a residential flat in Kumkum Housing Society which has been rented to Mr Senthil Kumar who belongs to my native place. He is not an employee of my company and except for collecting rent I do not have any transaction with him. Question by Adjudicating authority. Q6 Have you told be....