2013 (9) TMI 458 - AT - Central Excise

SSI Exemption - clubbing of clearance - Manufacture of Goods OR Not Duty Liability SSI Exemption Limit - stay - Revenue was of the view that the assessee was engaged in the manufacture of tin containers with the aid of power which are liable to duty of excise - However, as per the appellant, as their clearances were below small scale exemption limit, no duty was being paid by them - Held that - There was a lot of evidence discussed by the adjudicating authority in the shape of recovery of incriminating documents, inculpatory statements of various persons and verification of fact of manufacture of tin containers in the other two factories - All these evidences prima facie lead to conclusion that the tin containers were manufactured in the factory of M/s Sardar Metal Industries and were cleared in the name of the other two units i.e. M/s Ram Containers and Arjun Enterprises, as if the same were manufacturing the goods without the aid of power. As regards the financial condition M/s Sardar Metal Industries stands sold in the year 2003 - the other aspect of the financial position does not stand disclosed on record. Ld. Advocate draws our attention to income tax return filed by Sanjay Arora of M/s Sardar Metal Industries. However, the contention of ld. Jt. CDR is that when the goods manufactured by the said applicant were being sold in the name of the other two units, income tax returns were bound to reflect the low income of the applicant as the consideration of clandestine clearance as never reflected in the statutory documents - We prima facie agree with the contention of ld. Jt. CDR that consideration received against clandestine activity never forms part of the statute reflecting income tax. Waiver of Pre deposit - stay granted partly.

Summary

Issues:
- Confirmation of duty against M/s Sardar Metal Industries
- Imposition of penalty
- Allegations of clandestine clearance of tin containers
- Financial condition of the appellants
- Retracted statement of the Accountant
- Recovery of incriminating documents
- Sale of the factory

Confirmation of Duty and Imposition of Penalty:
The judgment pertains to the confirmation of duty amounting to Rs.3,77,05,489 against M/s Sardar Metal Industries, along with the imposition of penalties of an identical amount. The impugned order by the Commissioner confirmed these duties and penalties, which were also imposed on other applicants involved in the case. The case revolved around the manufacturing of tin containers by M/s Sardar Metal Industries, which were allegedly cleared in the name of other units, M/s Ram Containers and M/s Arjun Enterprises. The appellants argued that as their clearances were below the small-scale exemption limit, no duty was payable by them. The Tribunal considered various pieces of evidence, including the recovery of incriminating documents and statements of involved parties, to reach a conclusion.

Allegations of Clandestine Clearance and Financial Condition:
The Revenue alleged that tin containers manufactured by M/s Sardar Metal Industries were cleared under the names of other units, indicating clandestine activities. The appellants disputed this claim, highlighting that the tin containers were soldered, indicating manufacturing without the aid of power, unlike welded containers manufactured with power. The financial condition of the appellants was also a point of contention, with the Revenue arguing for a substantial deposit due to the significant amount involved in the case. The Tribunal noted the sale of M/s Sardar Metal Industries in 2003 but found that the complete financial position was not adequately disclosed on record.

Retracted Statement and Recovery of Documents:
The appellants contended that the Revenue's case heavily relied on the retracted statement of Shri Rakesh Kumar, the Accountant of M/s Sardar Metal Industries. They argued that not all buyers were investigated, and the recovered register did not belong to them. The Revenue, however, pointed to various seized documents, including a parallel set of invoices from Ram Containers, indicating clearances of tin containers. The Tribunal considered these recovered documents and statements as crucial evidence in the case.

Judgment and Order:
After considering the submissions from both sides and reviewing the impugned order, the Tribunal found prima facie evidence supporting the Revenue's claims of clandestine clearance and manufacturing irregularities. In light of this, M/s Sardar Metal Industries was directed to deposit Rs.50 lakhs within twelve weeks as a condition for hearing their appeals. Upon this deposit, the pre-deposit of the remaining duty amount and penalties for all applicants was waived, and recovery stayed during the appeal's pendency. The matter was scheduled for compliance verification on a specified date, and all stay petitions were disposed of accordingly.