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TMI Blog2002 (10) TMI 673X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Coal India Ltd., (hereinafter refers to M/s. CIL). It was observed that the party had received full payment for the value of these explosives including the central excise duty but the duty was never deposited with the central excise department. Accordingly, the proceedings were initiated against them and they were issued a show cause notice on 3-10-2000 by the Commissioner of Central Excise, Jaipur in which it was alleged that the party operated a current account in SBBJ, Dholpur where they enjoyed an overdraft facility of Rs. 140 lakhs upto 26-12-96. This facility was increased to 200 lakhs on their production of invoices, transportation receipts (GRs) and delivery challans vouching for the receipt of the material by the customers. The Bank immediately on receipt of the requisite documents from the party credited 90% of the particular bill amount (inclusive of excise duty and other element) in their account. Accordingly, the appellants were submitting the copies of the invoices and other documents to the bank. On scrutiny of these documents, it was observed that the assessee was maintaining two sets of invoices but the duty was paid only on one set of invoices. The increased ov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eged in the show cause notice that some of the invoices submitted to the bank by RECL belonged to other sets of invoices which were used to clear the goods to subsidiaries of M/s. CIL without payment of duty; that the assessee had resorted to clandestine removal of goods (explosives) by using the parallel invoices and that though the assessee had received full payment including the central excise duty from CIL, but the amount of central excise duty was never paid to the excise department. It is alleged that the total number of parallel invoices were found to be 1184 through which material was supplied to various collieries of CIL. M/s. RECL, Dholpur are therefore called upon to show cause why the duty amounting to Rs. 3,21,30,295/- should not be recovered from them by applying extended period of demand under Section 11A(1) of Central Excise Act, 1944 and why a penalty should not be imposed on them under Section 11AC and Rule 173Q of Central Excise Rules, 1944. They are called upon to show cause why interest should not be charged from them under Section 11AB. Sh. Rajesh Jain, M.D., Sh. B.D. Agarwal, V.P. (Commercial), Sh. A.K. Jain, V.P. (Production), Sh. Vinod Kumar Garg, Manager ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commercial) Rs. 4 lakhs (iii) Sh. A.K. Jain, V.P. (Production) Rs. 4 lakhs (iv) Sh. Vinod Kumar Garg, Manager (Finance) Rs. 3 lakhs (v) Sh. O.P. Gupta, Incharge of Excise Distribution Rs. 2 lakhs (vi) M/s. Garuda Sakthi Transport Co., Dholpur Rs. 2 lakhs 6. The Commissioner of Central Excise in his order has stated that it is an admitted fact that the assessee prepared all the invoices and routed the same through the bank; that the corresponding transport documents viz., bilties/GRs were also submitted for these invoices; that Sh. Vinod Kumar Garg, Manager (Finance) of RECL in his statement dt. 5-9-98 admitted that the parallel sets of invoices were also being used for clearance of goods. He has observed that these invoices are sufficient to conclude that the impugned goods had actually been cleared clandestinely; that once this conclusion is arrived at, the assessee s plea that they did not manufacture these goods is untenable and has no force as they did not adduce any evidence in this regard. He has observed that the central excise department has nothing to do with the non-receip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods covered by these invoices, the transport documents viz., delivery challans and GRs issued by the transport company are also attached with each one of the invoices. The ld. JDR during the course of hearing of the appeal showed to us the time and date of removal along with the registration number of the vehicle given in the invoices by which the goods were actually removed. The particulars reflected in the delivery challans tallied with those mentioned in the invoices. These documents are completely identical to the ones which the appellants themselves are admitting to be the genuine ones and under which the goods are actually cleared and the duty paid. In the face of these admitted facts, therefore there is absolutely nothing to distinguish between the two sets of documents. Further, Sh. Vinod Kumar Garg, Manager (Finance) of the company in his statement dt. 5-6-98 admitted that both the sets of invoices are genuine and were presented to the bank on the instructions given by Sh. Rajesh Jain, M.D; that two sets of invoices were prepared and only one set was declared to the Central Excise Department. Sh. O.P. Gupta, Manager (Distribution Excise) of RECL in his statement dt. 3-6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Suvarna Polymers (P) Ltd. v. C.C.E., Hyderabad - 2000 (120) E.L.T. 148 (T) (iii) M/s. K.J. Diesels (P) Ltd. v. C.C.E., Kanpur - 2000 (12) E.L.T. 505 (T) In the above decisions, the Tribunal has held that the inflated figures of clearances submitted to the State Industrial Department, to the Bank or reflected in the monthly bank statements alone is not sufficient for payment of duty on alleged clandestine removal in the absence of any other corroborative evidence. Sh. M.M. Dubey, ld. JDR has countered these submissions of the appellants by relying on the following decisions : (i) CC.E., Madras v. M/s. Madras Chemicals - 1986 (24) E.L.T. 308 (Tri.): It is for the assessee to prove and substantiate their plea that the documentary proof recovered from their possession has nothing to do with the removal on manufacture of excisable goods by them. A legal proof is not necessarily a perfect proof but only a prudent man s estimate as to the probabilities of the case. The materials recovered during the course of investigation, the statement recorded from the various persons and the surrounding circumstances, coupled with the entries in the red pocket diary clearly point to the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore us by the ld. Counsel for the appellants is that these persons cannot be subject to penalty under Rule 209A. In support of this contention, the reliance is placed on the decision of the Tribunal in Z.U. Alvi v. C.C.E., Bhopal - 2000 (117) E.L.T. 69 (T). In this decision an observation is made that the Commissioner proceeded against the appellant under Rule 209A, which can apply only to a person who dealt with the contraband article, not as a manufacturer; that appellant had no dealings with the contraband article otherwise than in his official capacity as an employee of BHEL, the manufacturer. So, by no stretch of imagination can the appellant fall within the purview of Rule 209A. Therefore, the Commissioner was clearly in error in thinking that penalty contemplated by Rule 209A could be imposed on the appellant who was only an employee of the manufacturer, namely BHEL. 11. We have considered the above submissions. It is observed from the facts in the cited decision, the appellant Sh. Z.U. Alvi was in appeal before the Tribunal against the imposition of heavy personal penalty of Rs. 50 crores on him under Rule 209A. It was the imposition of penalty of such a huge amount tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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