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TMI Blog2011 (3) TMI 966X X X X Extracts X X X X X X X X Extracts X X X X ..... estion the only relevant issue is that the supplier was not having such material on the date of supply. This position is not contested - Since this is a case of fraud the extended time under section 11A of the Act for demanding the duty evaded, applies - E/1721 of 2009-SM - - - Dated:- 23-3-2011 - Mr. Mathew John, J. Appearance: Appeared for Appellant : Shri K.L. Handa, Consultant Appeared for Respondent :Shri Anil Khanna, Sh. S.K. Bhaskar, DR Per Mathew John: The Appellant is a manufacturer of Elastic Rail Clip (ERC in short), falling under sub-heading 7302.90 of Central Excise Tariff, for supply to the Indian Railways. Indian Railways have given specifications for the raw material to be used and specified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Heard the arguments on both sides and perused the records. 6. The main contentions of the Appellant are the following: (a) At the time of surprise check the quantity of scrap found short was actually lying in the back portion of the factory. They cleared the same on payment of duty under invoice No. 56 dated 30-06-2005. It is pointed out that the quantity cleared on that date was 15.420 Tonnes and that much waste could not have been generated between 17-06-2005, the date of visit of the officers and 30-06-2005. Thus the Appellant claims that duty on the goods actually found short was paid on 30-06-2005 and hence there cannot be demand for the amount again. (b) The invoice issued by the second stage dealer to the appellant clearl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ater is very clearly an evidence fabricated after the stock taking to cover up the shortage detected. Since the Appellant is seen to be dealing in invoices without goods it is not surprising he has used the same method to cover up the shortage noticed on the date of seizure. I reject this evidence as something not consistent with common sense. 10. The argument regarding the fraudulent invoices on which credit is taken is equally unconvincing. The fact that the second stage dealer has written the required specification on invoice issued to the Appellant does not prove the innocence of the Appellant. Since there was no such goods with the supplier it is very obvious that the invoice was fraudulent. Further the supplier confirmed in his st ..... X X X X Extracts X X X X X X X X Extracts X X X X
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