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2019 (4) TMI 935 - AT - Central ExciseClandestine manufacture and removal - clubbing of clearances - clearance of manufactured ingots clandestinely in the garb of scrap - it was alleged that Appellants were operating from the same common premises and were engaged in the manufacture and Clandestine removal the Zinc Ingots - HELD THAT - It is evident that the records of the Appellant-Rishabh were picked up or resumed from their own premises located near Cannara Bank at Circular Road, Hathras without panchnama. We notice that the said claim of Appellant-Rishabh is duly supported by the letters of Smt Sandhya Maheswari and Shri Sandeep Maheshwari (Authorized representative of Appellant-Rishabh) both dated 8.01.2016 , intimating the facts to the Commissioner Central Excise, Agra . We do not feel that any further evidence was required to substantiate the claim. Linkage of the private records like Note Pads , Writing Pads and Register and the Computer print out with Appellant-Rishabh - HELD THAT- The observations of the Adjudicator are totally contrary to the admitted position in Para 6 and Para 18 respectively of the Show Cause Notice, which ruled out relevance of these documents with the Appellant-Rishabh. The fact of Smt Rashmi Jhawer s organizing and handling business activities from Calcutta is unambiguously clarified by Shri Sandeep Maheshwari in his statement recorded on the spot, on the day of search on 08.01.2016. While specifying his own responsibilities in the activities of maintenance of the records of the Appellant-Rishabh, at Hathras. We do not find any evidence on record to support the Revenue s claim of issue and /or service of any of the five summons to Smt. Rashmi Jhawar and thus her avoidance to tender evidence. Reliability on statements - HELD THAT - The Adjudicator had denied cross examination of Shri Santosh Jhawer , on the grounds of being co-accused and also at the same time relied on his statement recorded behind the back of the Appellant-Rashmi Jhawer , implicating Smt. Rashmi Jhawar. As per settled law, the statement of co-accused is a evidence but the statement of so claimed co-accused Shri Santosh Jhawer have been heavily relied against the Appellant-Rishabh, disregarding and by passing other direct evidences, is contrary to the settled law. Thus, it is convincing that the Appellants were operating and conducting their business from their respective premises and did not indulge in the manufacture of Zinc Ingots during the disputed period in the Show Cause Notice - the impugned order confiscating seized goods and confirming demand of duties and imposition of penalties is set aside - appeal allowed - decided in favor of appellant.
Issues Involved:
1. Alleged clandestine manufacture and removal of zinc and aluminum ingots. 2. Clubbing of the business affairs of two concerns for duty determination. 3. Validity of evidence and statements recorded during the investigation. 4. Seizure and confiscation of goods. 5. Eligibility for credit of additional duty of customs paid on imported scrap. 6. Calculation and confirmation of demand based on presumed value. Issue-Wise Detailed Analysis: 1. Alleged Clandestine Manufacture and Removal: The core issue was whether the appellants were engaged in the clandestine manufacture and removal of zinc ingots by mis-declaring them as zinc scrap. The Tribunal found that there was no substantial evidence to support the allegations of clandestine manufacture. The evidence relied upon by the Revenue, such as note pads and writing pads, did not bear the names of the appellants or any indication connecting the documents to them. The Tribunal also noted that there was no evidence of receipt of differential consideration or transportation documents to support the claim of clandestine removal. 2. Clubbing of Business Affairs: The Revenue clubbed the affairs of the two concerns, claiming they were defacto owned and managed by the same person. However, the Tribunal found that both concerns were operating independently from separate premises. The Tribunal observed that the records of Rishabh International were picked up from their own premises and not from SKJ Metals, as claimed by the Revenue. The Tribunal also noted that the appellants had separate registrations with various statutory authorities and complied with their requirements independently. 3. Validity of Evidence and Statements: The Tribunal scrutinized the validity of the evidence and statements recorded during the investigation. It found that the Panchanama was not credible as the witnesses were not associated with the search proceedings, and the alleged private records did not substantiate the charges. The Tribunal also found that the retracted statements of the appellants were not admissible as credible evidence. The Revenue's failure to allow cross-examination of key witnesses further weakened the case. 4. Seizure and Confiscation of Goods: The Tribunal found that the seizure and confiscation of goods were not justified. It noted that the seized aluminum ingots were of imported origin and not manufactured by the appellants. The Tribunal also observed that the appellants were not liable to pay duty on their own manufactured goods during the relevant period, as they were covered under an exemption notification. Consequently, the confiscation of goods and appropriation of the deposit towards duty were set aside. 5. Eligibility for Credit of Additional Duty: The Tribunal held that if the appellants were found liable for duty on the clearances of scrap consignments, they would be eligible for credit of the additional duty of customs paid on the imported scrap. However, since the charges of clandestine manufacture and removal were not established, this issue became moot. 6. Calculation and Confirmation of Demand: The Tribunal found that the demand was arbitrarily calculated based on presumed values derived from balance sheets, without any supporting evidence of clandestine manufacture or removal. The Tribunal observed that the nature of the commodity (zinc scrap) was misconstrued as zinc ingots for the purpose of quantifying the demand. The demand was thus found to be inconsistent with the law and not sustainable. Conclusion: The appeals were allowed, and the impugned order confiscating seized goods, confirming demand of duties, and imposing penalties was set aside with consequential relief. The Tribunal emphasized the lack of concrete, corroborative, and reliable evidence to establish the charges of clandestine manufacture and removal.
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