2016 (12) TMI 1057 - AT - Central Excise

SSI exemption - use of brand name of others - clandestine removal - undervaluation - Held that - it appears that the duty evasion is pre-planned, to evade duty by using others brand was planned by the appellant assessee. It is corollary that during the same period they also had the intention to evade payment of duty by way of under-valuation and surreptitious removal. The very act of resorting to usage of brand name of another established manufacturer in itself proves the mala fide intention of the assesee - also the opportunity of cross exemination as sought by appellant, was provided, but appellant failed to appear - appeal dismissed - decided against appellant-assessee.

Issues Involved:
1. Undervaluation of goods.
2. Denial of cross-examination.
3. Eligibility for Small Scale Industry (SSI) exemption.
4. Clandestine removal of goods.
5. Intention to evade duty.

Detailed Analysis:

1. Undervaluation of Goods:
The appellant, M/s. Emkay Investments Pvt. Ltd., was accused of undervaluing goods by showing lower sale prices from their depots compared to direct sales to customers. The Department based its calculations on documents such as Cash Book, Bills, Challans, and statements from buyers. The appellant contended that the ex-factory price should be considered for valuation and that the demand raised on depot sale prices was incorrect. They cited several case laws to support their argument.

2. Denial of Cross-Examination:
The appellant argued that the cross-examination of witnesses was incomplete. The Tribunal had previously allowed cross-examination, but the Commissioner noted that some witnesses did not appear, and others retracted their statements. The Commissioner concluded that the appellant had inspected and taken copies of the relied-upon documents and that their demand for document copies was a tactic to delay proceedings. The Tribunal found no denial of cross-examination and dismissed the appellant's contention.

3. Eligibility for SSI Exemption:
The appellant claimed SSI exemption under Notification No. 75/86. However, the Supreme Court had previously ruled against the appellant, stating that they used another brand (Marino) on their products, making them ineligible for SSI exemption. The Commissioner reiterated this point, emphasizing that the appellant's use of another brand indicated an intention to evade duty.

4. Clandestine Removal of Goods:
The Commissioner found evidence of clandestine removal of goods based on stock registers and other documents. The records showed that the same quantity of plywood was recorded twice under the same General Purpose Invoices (GPIs), indicating surreptitious removal. The Commissioner concluded that the appellant had removed goods without proper documentation and undervalued them, leading to duty evasion.

5. Intention to Evade Duty:
The Tribunal noted that the appellant's actions, such as using another brand and undervaluing goods, demonstrated a clear intention to evade duty. The Commissioner highlighted that the appellant's modus operandi included clearing goods without documentation and collecting extra amounts in cash, which was corroborated by various statements and documents.

Conclusion:
The Tribunal upheld the impugned order, agreeing with the Commissioner’s findings and reasoning. The appellant's appeal was dismissed, and the demands for duty, interest, and penalties were sustained. The Tribunal found that the appellant's actions were pre-planned to evade duty, and the case laws cited by the appellant were distinguishable based on the peculiar facts of the case. The judgment was pronounced on 16/12/2016.

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