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TMI Blog2006 (5) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... ennai-600 021 and Shri M. Selvam, M/s. Muthu Enterprises, No. 150, Ennore High Road, Coronation Nagar, Korukkupet, Chennai-600 021 have also filed applications dated 3-7-2003 for settlement of the proceedings as co-applicants. 2. The facts of the case are already given in the Admission Order No. 1/2004-CE dated 20-1-2004. Subsequent to the admission, the Commissioner (Investigation) was directed to investigate into the rival claims of the applicant and the Revenue and also to compare the evidences relied upon by the department by the order in C.No. V/15/44/2003-S.C. dated 31-5-2004. The Commissioner (Investigation) submitted his report to the Commission on 22-3-2006, a copy of which was given to the applicant as well as the Revenue. 3. During the hearing on 19-4-2006 S/Shri R. Raghavan, and T.S. Balasubramanian, Advocates appeared on behalf of the applicants. Revenue was represented by S/Shri V. Rajagopalan, Asst. Director, N. Sreenivasan, and S. Arulamudhu, Intelligence Officers, Directorate General of Central Excise Intelligence, Chennai Zonal Unit. The advocate on behalf of the applicants gave a written submission also. The Advocate submitted that he has raised the admitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, wherever cash receipts have been mentioned in the entries, in these documents, they have admitted the same and they are not willing to admit any liability in regard to supplies not made. The Revenue was relying mainly on the statement of Shri M. Arumugam regarding the supplies made to the customers mentioned in the diary of 2000. The Revenue has also further pointed out that the diary clearly mentioned that these were receipts of sale proceeds. The Revenue has also pointed out that Annexures D-2, D-3 and D-4 contained dates, varieties of snuff supplied, quantity supplied, opening balance, purchase amount and payment details, balance etc. In view of these specific entries, it appears that the applicant s contention that only a part of the amounts have been received in cash and that only can be admitted, does not appear to be valid. These documents read with statement of Shri Arumugam clearly indicate that the entire amounts pertained to illegal clearances and, therefore, the Bench is of the view that entire amount of Rs. 1,98,890/- should be confirmed. (iii) Annnexure P-5 :- The revised demand is only Rs. 9695/- in respect of this Annexure and the applicant has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equent to the date of search and recovery, that is, 23-1-2002. Therefore, they have pleaded that the entries pertaining to 24-1-2002 and 25-1-2002 are supplies to be effected and amounts payable at a future date. The Commissioner (Inv) has also pointed out that the possibility of applicants having received advance for future supplies cannot be ruled out. The Revenue is mainly relying on the statement of Shri M. Arumugam, Managing Partner of M/s. Uma Maheswari. Because the rate and quantity have been calculated with mathematical precision and, as the amount has been paid by cheque, and cash payment was only for a part payment of the goods received without bills the Revenue has concluded that these entries cannot pertain to advance payments. The Commission has considered the contentions on either side. There is no dispute that some of entries pertained to dates after the slips have been recovered. The Revenue has not given any specific explanation in support of their contention that these entries pertained to actual clearances dates except the statement of Shri Arumugam. There is no other evidence to corroborate the statement that all the slips pertain to transactions already complet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey are related in as much as the proprietors of these two firms are the brothers of Shri M. Arumugam, who is the Managing Partners of M/s. Uma Maheswari Madras Snuff. The applicant has pleaded that for demanding the differential duty, the price charged to independent buyers unit should be taken. According to them, they have paid duty for clearances to Muthu Enterprises and Vinayaka Agencies on the basis of sale price to independent persons and hence, this demand cannot be sustained. On examination of this contention, it appears that the plea of the applicant is correct and, therefore, the demand under these two annexures are not sustainable. On the above basis, the total sustainable demand comes to Rs. 13,69,239/-. The annexure-wise break-ups of the same is as follows :- Annexure Nos. Amount Rs. D-l 5,41,811 D-2, D-3 and D-4 1,98,890 D-5 9,695 D-6 63,327 D-7 55,071 D-8 8,683 D-9 2,49,357 D-10 2,42,405 D-11, D-12 and D-13 Nil Total 13,69,239 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Bench in Final Order No. 1/2003-CE dated 16-1-2003 in the case of New Hope Food Industries, where DGCEI was the respondent, have released the cash seized. Under these circumstances, we are not convinced that the entire amount of Rs. 69,07,500/- pertained to illegal clearances over and above illegal clearances alleged in the Show Cause Notice. Therefore, we are of the view that in the light of the evidence let in by the applicant, cash amount deserves to be returned. 6. On the basis of the above findings, the application is settled finally in terms of sub Section (7) of Section 32F of the Central Excise Act, 1944 on the following terms :- (i) The duty liability is settled at Rs. 13,69,239/-. The applicant has already paid Rs. 13,01,193/- The balance amount of Rs. 68,046/- shall be paid by the applicant within 15 days from the date of receipt of this order and report compliance to this Bench. (ii) The applicant shall pay simple interest @ 10% per annum on the duty amount from the date when the duty amount became due till the date of complete payment. The Revenue shall work out the interest amount and intimate the same to the applicant who shall discharge the same wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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