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2016 (4) TMI 623 - AT - Central ExciseClandestine removals - Evasion of duty - unaccounted raw materials and finished goods causing evasion of duty - Duty demand - Held that - The appellant in one hand admitted the fraud committed against Revenue involving duty evasion of ₹ 67,03,159/- but on the other hand pleaded adjustment of credit of ₹ 30,61,782/- against such liability committing further fraud of fabrication of spurious invoices. That was done against illicit transactions. The incriminating evidence in File A and the spurious documents in File B were termed by the appellant as Annexure C2 and C3 giving rise to the demand of ₹ 67,03,159/- and ₹ 30,61,782/- respectively. That speak the premeditated design of the appellant to defraud Revenue. Therefore, extending any set off of duty under Annexure-C3 will be bonus to evasion. Although there were several opportunities granted, by Tribunal, M/s. Vijay Aqua did not lay any cogent and credible evidence to prove that the materials contained in File A (which were according to the appellant the Annexure C2 documents) giving rise to the demand of ₹ 67,03,159/- is unsustainable. That became admitted fact without controverting. The allegations of investigation and adjudication findings could not be defended. Therefore the demand on that count is to be sustained. It is ordered accordingly. There was no argument at all made by the appellant for M/s. Vijay Aqua on other consequence of adjudication. Therefore that part of adjudication remain untouched by this order. Accordingly those consequences stand confirmed and its appeal is dismissed. It was prayer of the Appellant M/s. Vijay Aqua that the Tribunal may send back the matter to Settlement Commission for their reconsideration. Without any provision in law in this regard, such prayer is dismissed. So far as penalty on Shri Thiagarajan, Managing Director and on Shri S. Nainar, Director of M/s. Vijay Aqua is concerned, there was no evidence led by them to prove their innocence. Investigation result revealed their active and conscious involvement in dealing with unaccounted raw materials and finished goods causing evasion of duty. Both of them colluded to defraud Revenue. Investigation substantiated its result with full proof leading incriminating evidence against all the appellants which remained uncontroverted. Therefore, penalty imposed on both the appellant is confirmed and their appeals dismissed. So far as duty demand on M/s.Mathura Polymers is concerned, it is an established fact from the evidence on record that this concern was involved in removal of unaccounted job worked goods to Vijay Aqua and was an abettor to commit fraud against Revenue. Accordingly entire demand of duty of ₹ 5,95,721/- levied on this concern is confirmed having been engaged in manufacture of duty evaded goods. So also the other consequences of law as adjudicated by the adjudication order remain untouched by this order except to the extent hereinafter dealt separately. Interest if any, payable, shall be recovered. So far as imposition of penalty on M/s. Mathura Polymers, under Rule 173Q of Central Excise Rules, 1944 is concerned, that is not desirable to be levied in view of penalty of ₹ 5,95,721/- confirmed against that appellant imposed under section 11AC of Central Excise Act, 1944. The penalty levied on Shri V. Natarajan does not appear to be reasonable for no incriminating evidence recovered in the course of search against him. He rather brought out the fraud committed against Revenue brining out involvement of Shri Rama Rao who was in-charge of manufacture in Mathura Polymers and further corroborated by the statement of truck driver of Shri Govindarajan. Therefore his appeal is allowed waiving penalty levied on him. It is made clear that apart from the specific order passed as above, the other consequences of law flowing from the adjudication order passed against M/s. Vijay Aqua and M/s. Mathura Polymers are confirmed.
Issues Involved:
1. Imposition of personal penalty on Shri Natarajan. 2. Duty liability and penalty on M/s. Mathura Polymers Pvt. Ltd. 3. Duty evasion and penalty on M/s. Vijay Aqua Pipes Pvt. Ltd. 4. Penalty on Shri S. Nainar and Shri R. Thiagarajan. Issue-wise Detailed Analysis: 1. Imposition of Personal Penalty on Shri Natarajan: Shri Rajendran, Advocate for Shri Natarajan, argued that the personal penalty of Rs. 50,000/- under Rule 209A of Central Excise Rules, 1944, was baseless. He contended that Shri Natarajan, the Managing Director of M/s. Mathura Polymers, was not involved in the alleged clandestine removal of goods. The evidence, including the statement of Shri Rama Rao, indicated that Shri Natarajan was not involved in day-to-day activities due to differences with other directors. The Tribunal found no incriminating evidence against Shri Natarajan, corroborated by the truck driver's statement. Therefore, the penalty on Shri Natarajan was waived, and his appeal was allowed. 2. Duty Liability and Penalty on M/s. Mathura Polymers Pvt. Ltd.: Shri Venkatachalam, Advocate for M/s. Mathura Polymers, argued that the company was merely a job worker for M/s. Vijay Aqua and should not be liable for the assessed duty of Rs. 5,95,721/-. He highlighted procedural lapses, such as not allowing cross-examination of key witnesses. The Tribunal confirmed the duty demand of Rs. 5,95,721/- and interest but waived the additional penalty of Rs. 50,000/- under Rule 173Q, recognizing the penalty under Section 11AC of CEA, 1944, as sufficient. The appeal of M/s. Mathura Polymers was dismissed, confirming the duty demand and other legal consequences. 3. Duty Evasion and Penalty on M/s. Vijay Aqua Pipes Pvt. Ltd.: M/s. Vijay Aqua was found to have evaded duty by not accounting for goods sent to and received from M/s. Mathura Polymers. The investigation revealed clandestine removal of PVC pipes, corroborated by statements from key individuals and incriminating documents. The company admitted to duty evasion of Rs. 67,03,159/- but sought to offset this with Rs. 30,61,782/- paid on fabricated invoices, which the Tribunal rejected. The Tribunal confirmed the entire duty demand and other legal consequences, dismissing the appeal of M/s. Vijay Aqua. 4. Penalty on Shri S. Nainar and Shri R. Thiagarajan: Both directors of M/s. Vijay Aqua were penalized for their active involvement in duty evasion. Despite their pleas of innocence, the investigation provided substantial evidence of their conscious involvement in the fraudulent activities. The Tribunal confirmed the penalties of Rs. 2 lakhs on Shri Thiagarajan and Rs. 3 lakhs on Shri Nainar, dismissing their appeals. Conclusion: The Tribunal upheld the duty demands and penalties on M/s. Mathura Polymers and M/s. Vijay Aqua, confirming their involvement in duty evasion. Shri Natarajan's appeal was allowed, waiving his penalty due to lack of incriminating evidence. Appeals of Shri S. Nainar and Shri R. Thiagarajan were dismissed, confirming their penalties. The Tribunal emphasized that fraud nullifies any claim for benefits under the law, and no small-scale exemption was granted to M/s. Mathura Polymers.
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