TaxTMI 
TaxTMI 
2025 (1) TMI 64
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....e central Excise invoices, they also mis-declared the actual ex-factory price of such tiles, which was recoverable from their buyers. Search was conducted at the factory premises of appellant and other premises of the appellant and during the search several incriminating records/ documents were found and the same were withdrawn under panchanama. Also searches were conducted at the major dealers/ depot of Appellant located at various places and incriminating documents were withdrawn from there. By scrutiny of the documents withdrawn and after detailed investigation and recording statements of various persons, a detail show cause notice dtd. 30.05.2009 was issued to the Appellants asking them to pay the central excise duty of Rs. 4,24,48,496/- under proviso to Section 11A of the Central Excise Act, 1944. Penalty under Section 11AC of the Central Excise Act 1944 and Rule 25 of the Central Excise Rules 2002 has also been proposed. The SCN also proposes penal action on Shri Ganpatbhai D. Patel under Rule 26 of the Central Excise Rules, 2002. In adjudication the demands were confirmed by the adjudicating authority vide impugned order. Aggrieved, the appellants have filed the present appe....
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....ii) Commissioner of Central Excise Vs. Sakeen Alloys Pvt. Ltd. - 2014 (308) ELT 655 (Guj.) (iii) Vishwa Traders Pvt. Ltd. Vs. Commissioner of C.Ex. Vadodara- 2012 (278) ELT 362 (Tri. Ahmd.) (iv) Commissioner of C,Ex. Vs. Vishwa Traders Pvt. Ltd. - 2013 (287) ELT 243 (Guj.) (v) Commissioner Vs. Vishwa Traders Pvt. Ltd. -2014 (303) ELT A24 (SC) (vi) Commissioner of Central Excise Vs. Kuber Tobacco Products Pvt. Ltd. & Anr CEAC 40/2012 dtd. 11.03.2024. 2.5 He argued that although statements of various persons were recorded, cross examination of the same is not afforded. Hence the statements of witnesses would lose its credibility as the adjudicating authority fails to grant cross-examination. He placed reliance on the following judgments. (i) Andman Timber Industries Vs. Commr. Of C.Ex., 2015 (324) ELT 641 (SC) (ii) Jeen Bhavani International Vs. Commissioner of Customs, Nahva Sheva -III (2023) 6 Centax 11 (Tri. Bom) (iii) Commr. Of C.Ex., Ahmedabad -II Vs. Gujarat Cypromet Ltd. - 2017 (345) ELT 520 (Guj) (iv) J&K Cigarattes Ltd. Vs CCE - 2009 (242) ELT 189 (Del.) (v) CCE Vs. Govind Mills Ltd. -2013 (2....
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....022 (63) GSTL 64 (Tri. Ahmd) (iv) S.N. Agrotech Vs. Commissioner of Customs, New Delhi - 2018 (361) ELT 761 (Tri. Del.) 3. On other hand, Shri Tara Prakash, Ld. Deputy Commissioner (AR) for the revenue has reiterated the findings recorded in the impugned order, to support the adjudged demands confirmed in the impugned order, against the appellants. 4. We have carefully considered the detailed submissions made by both sides and perused the records. 4.1 We find that the issue of mis-declaration of MRP and/or alteration of MRP post removal of the goods prior to 01.03.2008, was already decided in favour of various assessees. The undisputed facts are that the appellants are manufacturer of ceramic/vitrified tiles and the said tiles are covered under the provisions of Section4A of Central Excise Act, 1944 (hereinafter referred to as 'the Act') and are discharging excise duty on the basis of MRP declared on the boxes cleared from their factory premises. It is also undisputed that the appellant assessees are selling their final product ex-factory. 4.2 We find that the entire case of the Revenue as adjudicated by the Ld. Commissioner confirming the demand based upon the....
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.... Subsequently, while deciding the application filed for rectification of mistake in the order dated 10.01.2019 of division bench, division bench of Ahmedabad Tribunal referred the following additional questions to be decided by Larger Bench. "3. Subsequently, while deciding an application filed for rectification of mistake in the aforesaid order dated 10.01.2019 of the Division Bench, a Division Bench of the Ahemdabad Bench of the Tribunal referred the following additional issue to be decided by the Larger Bench: "(3) In the facts and circumstances of the case, if the evidence establishes that the RSP was manipulated fraudulently at the behest of the appellant by any other person, can the liability of duty be fastened on the appellants." The aforesaid questions were answered in the following manner by the Larger Bench vide Interim order No. 1-23 of 2024 dated 23.01.2024: "90. The reference made by the Division Bench to the Larger Bench of the Tribunal is, accordingly, answered in the following manner: (i) It is not permissible to ascertain the retail sale price of goods removed from the place of manufacture, without declaring the retail....
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....demand is on the basis of the details available in the estimates/debit memos recovered from Appellant's Mumbai and Delhi office and statements recorded by the investigating officers. We noticed that in the said matter appellant requested for cross-examination of witnesses which was rejected by the Ld. Adjudicating authority. Further the director of Appellant's company has also retracted his statement by filing affidavits. It was on records that Appellant have raised the dispute on statements of witness recorded during the course of investigation by investigating officers. Therefore the said statement cannot be relied upon as admissible evidence in terms of the provisions of Section 9D of the Act. The provisions of Section 9D which are reproduced as under:- "9D. Relevancy of statements under certain circumstances. - (1) A statement made and signed by a person before any Central Excise Officer of a gazetted rank during the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains, - (a) when the person who made the statement is ....
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....by Revenue which mainly are the following : (i) There should be tangible evidence of clandestine manufacture and clearance and not merely inferences or unwarranted assumptions; (ii) Evidence in support thereof should be of : (a) raw materials, in excess of that contained as per the statutory records; (b) instances of actual removal of unaccounted finished goods (not inferential or assumed) from the factory without payment of duty; (c) discovery of such finished goods outside the factory; (d) instances of sale of such goods to identified parties; (e) receipt of sale proceeds,; (f) use of electricity far in excess of what is necessary for manufacture of goods otherwise manufactured and validly cleared on payment of duty; (g) statements of buyers with some details of illicit manufacture and clearance; (h) proof of actual transportation of goods, cleared without payment of duty; (i) links between the documents recovered during the search and activities being carried on in the factory of production; etc. 4.8 Needless to say, a precise enumeration of all situations in which one could hol....
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....issioner against the said order of Tribunal, the Hon'ble High Court of Punjab & Haryana held that even if some record recovered during the raid and was corroborated by some supportable evidence holding that there was admission of clandestine production and removal of goods, it is necessary to have some positive evidence of clandestine production and removal of goods. The question of law preferred whether in the light of the private record discovered during the raid, the Tribunal was right in holding that there was no positive evidence of clandestine production and removal of goods was answered against the Revenue and in favour of the assessee. (ii) In T.G.L Poshak Corp. v. CCE [2002 (140) E.L.T. 187], Tribunal considered the issue as to whether the demands can be confirmed on the basis of recovery of exercise note books and certain balance sheets maintained by the assessee and in the absence of any corroborative evidence. In fact, in a tabulated form Tribunal dealt with the judgments which were referred to, to support the plea that demands cannot be confirmed which contained the reason for this Tribunal coming to the conclusion that, in the absence of any corroborative evi....
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....rative proof like financial flow back, actual manufacture and clearance, excess purchase of raw material, electricity consumption, statement of workers, actual transportation of the goods, and statement of purchasers. It was contended on behalf of the Revenue that the case was based on parallel invoices recovered from the residential premises of the factory manager and accountant. Lorry receipts indicated that there was no movement and even if there was any movement they were not clandestine clearances. The Managing Director of the company had even stated that they were making clandestine clearance of the finished products without recording the same in their books of account. The request for cross examination of some of the persons whose statements were relied upon was rejected by the Adjudicating Authority only on the ground that the assessee had not given any reason and justification for their cross examination. Tribunal held that this approach of the Adjudicating Authority is inconsistent with the law of evidence. On a careful perusal of the entire records of the case, the Tribunal found that there was nothing on record as to unrecorded purchases or consumption of other various ....
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....d about the dispatch of excess quantity of goods through the transporters. Further, no enquiry initiated against the customers and the consumption of power was also not taken into consideration. We note that Hon'ble Allahabad High Court in the case of Continental Cement Co.2014 (309) E.L.T. 411 (All. (supra) in paras 12 & 13 has held as follows:- "12. Further, unless there is clinching evidence of the nature of purchase of raw materials, use of electricity, sale of final products, clandestineremovals, the mode and flowback of funds, demands cannot be confirmed solely on the basis of presumptions and assumptions. Clandestine removal is a serious charge against the manufacturer, which is required to be discharged by the Revenue by production of sufficient and tangible evidence. On careful examination, it is found that with regard to alleged removals, the department has not investigated the following aspects : (i) To find out the excess production details. (ii) To find out whether the excess raw materials have been purchased. (iii) To find out the dispatch particulars from the regular transporters. (iv) To find out the realization of sale p....