2012 (9) TMI 416 - AT - Central Excise

Demand of duty, interest and penalty - Valuation on the basis of seized one document it was alleged that assessee under valued the Texturised yarn which was sold through broker Shri Mahesh Mistry Held that - Appellants never cleared goods to M/s. Kala W works and if so, the rate of M/s. Kala W works cannot be applied to work out the differential amount - though the department quoted complete details of sale transaction of entire disputed period, no investigation was extended to any customer that they had made any payment on extra consideration to the appellant - no corroborative evidence available on record about the receipt of any extra consideration - Demand of duty, interest and penalty set aside

Issues Involved:
1. Allegation of undervaluation of Texturised yarn.
2. Confirmation of Central Excise duty demand.
3. Imposition of interest under Section 11AB.
4. Imposition of penalties under Section 11AC and Rule 209A.
5. Validity and reliability of evidence (Sauda Book).

Issue-wise Detailed Analysis:

1. Allegation of Undervaluation of Texturised Yarn:
The case originated from the scrutiny of a document named "Sauda Book/Sauda File" seized from Shri Mahesh Mistry, which indicated that M/s. Baba Synthetics Group of Industries had allegedly undervalued Texturised yarn sold through a broker. The scrutiny revealed an extra amount of Rs. 1,04,94,838/- collected from customers, leading to an alleged evasion of Central Excise duty amounting to Rs. 45,79,923/-.

2. Confirmation of Central Excise Duty Demand:
The original adjudicating authority confirmed the demand for Central Excise duty of Rs. 45.79 lakhs + Rs. 30.22 lakhs + Rs. 32.31 lakhs under Section 11A of the Central Excise Act, 1944. This was based on the details reflected in the Sauda Book and the Central Excise invoices issued by the appellants.

3. Imposition of Interest under Section 11AB:
The adjudicating authority also ordered the payment of interest under Section 11AB of the Central Excise Act, 1944, on the alleged short-paid/evaded duty.

4. Imposition of Penalties under Section 11AC and Rule 209A:
Penalties of Rs. 45.79 lakhs + Rs. 30.22 lakhs + Rs. 32.31 lakhs were imposed on the unit under Section 11AC of the Central Excise Act, 1944, read with Rule 173Q(1) of the Central Excise Rules, 1944. Additionally, penalties of Rs. 10 lakh each were imposed on Shri Zunedbhai Motiwala, a partner of M/s. Baba Fibers, under Rule 209A of the Central Excise Act, 1944.

5. Validity and Reliability of Evidence (Sauda Book):
The Commissioner (Appeals) found that the evasion calculation was based on the Sauda Book of Shri Mahesh Mistry, but there was no discussion in the show cause notices or orders about the reason for deviation from the initial calculations made by the officers. The Sauda Book was not considered an authentic record for sole reliance. The Commissioner (Appeals) noted significant discrepancies, such as the application of a rate from the Sauda Book to all clearances without matching consignee, quantity, and quality. For example, the rate of Rs. 104/- for M/s. Kala W Works was applied to all clearances on a particular date, despite no invoices being issued to M/s. Kala W Works on that day.

Judgment:
The Tribunal upheld the findings of the Commissioner (Appeals), noting that the appellants never cleared goods to M/s. Kala W Works, and therefore, the rate of M/s. Kala W Works could not be applied to calculate the differential amount. The Tribunal emphasized the lack of corroborative evidence regarding the receipt of any extra consideration from customers, which was crucial to sustaining the case. The Revenue failed to prove the charge of undervaluation both legally and factually.

Conclusion:
The appeal filed by the Revenue was rejected, and the order of the Commissioner (Appeals) was upheld. The cross objections filed by the respondents were also disposed of. The Tribunal concluded that the Revenue could not substantiate any charges of undervaluation, making the appeal devoid of merit.

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