TMI Blog2010 (10) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... red. Under these circumstances it has to be held that department has been able to make out a case of removal without proper documents. - demand sustained. Cum Duty Price - It is an accepted principle that when a transaction value is available, we need not require a Chartered Accountant to certify that the price charged includes all the elements. Only in the case of refund claim, assessee is required to show that the duty liability has not been passed on. This is not a case of claiming refund. In any case in the absence of any evidence of collection of extra amount and also in view of the fact that the department’s demand of duty is based on the very same invoice and the correctness thereof, the same invoices cannot be ignored for the purpose of treating it as cum duty price. Extended period of limitation - extended period would be invocable in this case in view of the fact that parallel challans were maintained, plastic granules were cleared in the guise of lay fiat tubings, non-existent vehicles numbers were shown in the documents, payments were received in cash and details of buyers were suppressed. Therefore the submission that extended period could not have been invoked is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f of the appellants it was submitted that they had sought the cross examination of Shri K. Prabhakar which was not allowed; that the three purchase orders submitted by them clearly showed thai order was placed for lay flat tubing by Eastern Group Company thereby showing the statement of Shri K. Prabhakar to be incorrect; that Shri Prabhakar s statement that the turmari packing units were closed during 2005 would not help the department s case in view of the fact that the period involved in this case relates to period prior to April 2005; that after recording the statement of Shri K. Prabhakar. no further enquiries were made with Shri K.B. Nair. It is seen from Annexure A that supplies covered by the show cause notices were from27-4-03to6-4-05in respect of Eastern Group Companies. Shri D.P. Vyas in his statement had stated that wherever payments were received by cheque and supplied to regular customers, all such supplies were only lay flat tubings and as recorded in the invoices. In fact the department s case in respect of Annexure B2 mainly proceeds on this ground since no buyer could be contacted. While for the purpose of clearances listed in Annexure B2 B3, department relies up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted for in their books. It was also submitted that their request for cross-examination of the partner of Deepak Chemoplast was not granted. Further the other existing customers namely Asian Packaging Sunrise plastic were not contacted at all. We find considerable force in the arguments advanced by the learned advocate. Since the statement of Shri Lalit Agarwal was recorded on6-9-06which was subsequent to statements recorded from the persons of the company, the reaction of the persons who had given statements earlier on behalf of RIP should have been obtained by showing them the statement. This is especially required in view of the fact that the statement of Shri Lalit Agarwal was not in corroboration with the statement of Shri D.P. Vyas. Alternatively cross-examination requested by the appellants should have been allowed. Further it is surprising that no notice has been issued to Deepak Chemoplast even though obviously they have also committed an offence. Again since the confirmation of demand would amount to discarding of a portion of the statement of the various persons and in the absence of cross-examination of Shri Lalit Agarwal and in view of the fact that only one invoice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ignee. No doubt there is no obligation to provide the address of the consignee if the appellants had cleared the goods as per the description of the invoice. In fact if the appellants did not clear granules in the guise of lay flat tubing, nobody would have asked them this question as to why the address of the buyer was not given. The question also arises when there was no requirement, why the appellants were giving name and address of the existing customers in the invoices. Further the question also arises why the different payment system was followed. As regards cross-examination, it has to be noted that all the persons whose cross-examination they have sought are their own employees and Shri Anil Agarwal happens to be the partner of the company. It has to be noted that the two key personalities namely Shri Hetal Patel and Shri Vyas have not retracted their statements till date even though mere retractions would be evidence of appellants doing everything correctly. In view of the statements of Shri Hetal Patel, Shri Vyas, Shri K.B. Nair endorsed by partner Shri Anil Agarwal and cash receipts by the appellants and that statements of transporters, it is quite clear that appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty amount. The Commissioner in the impugned order has rejected this claim relying upon the decision of the Hon ble Supreme Court in the case of Amrit Agro Industries Ltd. reported in 2007 (210) E.L.T. 183 (S.C.). The Hon ble Supreme Court had observed that the assessee will have to show as to how he has determined the value. What the assessee had really done in the instant case has to be examined. Whether the price charged by him to his customers contain profit element or duty element will have to be examined. This examination is warranted because one cannot go by general implication that the wholesale price would always mean cum duty price. The Commissioner has held that RIP while claiming the benefit of cum duty price did not substantiate their claim duly certified by a chartered accountant and did not give detailed breakup of their pricing structure and therefore the calculations made in their submissions are imprecise. The submissions made by the appellant in this case are as under : The demand should be determined on the principle of cum-duty price , as explained hereunder : Let the value be (price at which the goods were sold) = Rs. 100 R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been passed on. This is not a case of claiming refund. In any case in the absence of any evidence of collection of extra amount and also in view of the fact that the department s demand of duty is based on the very same invoice and the correctness thereof, the same invoices cannot be ignored for the purpose of treating it as cum duty price. Therefore we consider it appropriate that the appellants claim for treating the amount as cum duty price has to be upheld and we also find that the method adopted by the appellants for calculating the duty amount demandable is also correct. Therefore the duty demand comes down to Rs.56, 98,763/- instead of Rs. 66,45,794/-. 9. Needless to say the extended period would be invocable in this case in view of the fact that parallel challans were maintained, plastic granules were cleared in the guise of lay fiat tubings, non-existent vehicles numbers were shown in the documents, payments were received in cash and details of buyers were suppressed. Therefore the submission that extended period could not have been invoked is not acceptable. Therefore penalty under Section 11AC equal to duty is imposable. 10. The next issue to be considered is the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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