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TMI Blog2012 (11) TMI 963X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 of 2011 - 899-903/2012-EX(BR) - Dated:- 18-5-2012 - Ajit Bharihoke, Rakesh Kumar, JJ. For Appellant: Shri Bipin Garg, Adv. For Respondent: Shri R K Verma, Ar Per: Ajit Bharihoke: M/s. Alliance Alloys Pvt Ltd., Palwal, With Shri Ashwani Mahajan as its Managing Director and Shri Rajesh Mahajan as Director, manufacture Aluminium Alloy Ingots for which their main raw material is Aluminium Scrap, Copper Scap, Silicon Metal, Zinc Scrap, etc. In addition to these items, the Appellant Company also claimed the use of Aluminium ingots, aluminium CR Sheets/coils, aluminium profiles, and aluminium rods as inputs in respect of which also cenvat credit was availed. The Aluminium rods, sheets/coils ingots are claimed to have been supplied from BALCO, Renukoot through BALCO's dealers, - M/s. Start Aluminium Corporation, Delhi, M/s. Laxmi Wire Melting Weaving Factory, Delhi, M/s. Laxmi Metal Works, New Delhi, M/s. Rakhi Agencies Pvt. Ltd., M/s. Alcon Foils Pvt. Ltd., Sonepat. Some quantity of Aluminium coils/sheets, rods ingots are claimed to have been received directly from M/s. Aspen Online Pvt. Ltd. and M/s. Padia Industries Ltd., Rohtak. M/s. Avon Tubestech Pvt. Ltd. wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read with proviso to Section 11A(I) of Central Excise Act, 1944, along with interest on It under Section 11 AB ibid and appropriation of an amount of Rs.9,45,338/- already deposited during investigation; (b) Imposition of penalty on M/s. Alliance Alloys under Rule 15(2) of Cenvat Credit Rules, 2004 read with Section 11 AC of the Central Excise Act, 1944; (c) Imposition of penalty under Rule 26 of Central Excise Rules, 2002 on - (i) Ashwani Mahajan and Shri Rajesh Mahajan; (ii) M/s. Avon Tube Tech Pvt. Ltd., owner of M/s. Avon Dharamkanta, (iii)the dealers - M/s. Padia Industries, Rohtak and M/s. Aspen Online Pvt. Ltd,; and (iv)the transporters - M/s. KCGC Carriers Pvt. Ltd., M/s. Kanpur Calcutta Goods Carriers; M/s. Jan Parivahan and M/s. Renukoot Goods Carriers 3. The above show cause notice was adjudicated by the Commissioner, Central Excise, Delhi-IV vide order-in-original No.04/DM/Adjn./2010-11 dated 7.2.2011 by which - (a) The cenvat credit demand of Rs.4,46,74,814/- was confirmed against M/s. Alliance Alloys Pvt. Ltd. along with interest and the amount of Rs. 9,45,338/- already paid was appropriated; (b) Penalty of Rs.4,46,74,814/- was imposed on M/s. Allian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mkanta slip, ignoring the fact that some of the consignments were transported through more than one truck and as per the procedure adopted by the transporter whenever the goods were transferred from one truck to other, number of transferee truck was also endorsed on the goods received. It is submitted that the Adjudicating Authority has ignored the possibility that the Dharamkanta person might have entered either of the registration nos. mentioned in the GRs without verifying the actual registration no. of the delivery truck. It is submitted that even in respect of the discrepancy in the tare weight of the delivery truck, the Commissioner has failed to appreciate that it is not always the delivery truck carries the full load, sometimes the loads of the consignments of other customers are also loaded in the truck and this could have been reason for the discrepancy in respect of tare weight. Ld. Counsel further submitted that the Commissioner Adjudication has erred in drawing adverse inference against the appellant on the basis of huge variation in the time consumed for delivery of different consignments from Koraba to the factory of the appellant without anoreciatine that there coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad not been consumed in the production of finished goods till 20.02.2006 though as per the records they had issued the same to the shop floor; that the said inputs should have been available on the floor but on physical verification there was no stock of the said items; that he was unable to explain the discrepancy between the physical stock and the records of stock issued for production and he voluntarily paid/ debited the cenvat credit of Rs. 9,45,338/- attributable to the said short found quantity of the impugned inputs. 4(iv) The fact that the noticee was not utilizing the so called high valued raw materials in the manufacture of their final products i.e. aluminium alloys ingots, is also proved from the fact that the vehicles shown in the Dharamkanta slips/ material inward register produced/ maintained by the noticee and reported to have transported the impugned inputs/ raw materials to the factory premises of the noticee, either never entered the Haryana State during the material period of demand in the absence of Inter-State Permits or were not available at Faridabad on the dates when the said vehicles were reported to have delivered the raw material in the factory of the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice, it is evidently clear that the above three vehicles as well as other vehicles i.e. MP-53H0116, HR-38J0501, CG-12ZC0254, CG-12 9309, CG-12ZC 1050, HR-38H 9951, HR-37A 4811, HR 38J-0471, HR38L-4561, HR 38L-4511, HR-38H-9961 reported to have delivered the impugned high valued rolled products from Korba on the dates on which the noticee had shown receipt of goods in their factory premises through these vehicles, as per the transporter's record of Korba. Similarly vehicles Nos. HR-38J-0501 and HR 38J-0471 shown to have delivered the goods in the factory of the noticee on 11.5.2005 had already left Bhiwadi (Rajasthan) for Champa on 6.5.2005 and 7.5.2005 respectively, therefore, the said vehicles being enroute from Bhiwadi (Rajasthan) to Champa could not be at Faridabad on 11.5.2005 and hence the question of use of said vehicles for transporting the goods from Korba to the noticee's factory at Faridabad and receipt of the said goods by the noticee in their factory on 11.5.2006 through the said vehicles, does not arise. Further, the investigations revealed that the vehicles having registration of Chattisgarh State, for instance vehicle No. CG12ZC 0172, CG-12ZC 1106, CG-12ZC 0987, CG 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... All this shows that the noticee in connivance with the owner/ persons handling the Avon Dharamkanta, manipulated the dharma kanta slips with the sole motive to dodge the Central Excise authorities and to make the transactions as if the same were genuine, whereas, no such goods were actually received and used by the noticee in their factory premises. The fact that the tare weight of the vehicles as shown by noticee in their kanta slips, was fake is proved from the enquiry reports sent by the Regional Transport Authorities, Ballabhgarh and Korba, as relied upon in the show cause notice. 4(vi) The fact that the kanta slips shown receipt of goods in the factory of the noticee, were fake/ bogus, is also proved from the statement dt. 22.2.2007 of Sh. Satish Kaushik, Dharamkanta Operator, interalia, stating that some of the kanta slips were signed by him; that their dharamkanta slips were bogus because the tare weights of the vehicles were not tallied with their actual tare weights; that on going through the list of vehicles prepared by the Central Excise Officers and the statements of the transporters, he confirmedly admitted that the said vehicles (shown in the list) never came at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any, is proved from the fact that Avon Dharamkanta was owned by M/s Avon Tube Tech Pvt. Ltd. Plot No. 42, Secto-6, Faridabad which was being run by Sh. Ashwani Mahajan, one of its Directors and Sh. Ashwani Mahajan was also one of the Directors in the noticee-company with Sh. Rajesh Mahajan and Sh. Muketesh Lekhi as other Directors. Sh. Satish Kaushik, Dharamkanta operator during confrontation of the computer print out of the dharamkanta, had informed the Central Excise officers that in the case of M/s Alliance Alloys Pvt. Ltd. Faridabad (noticee) or M/s Avon Tube Tech Pvt. Ltd. (the owner of the Dharamkanta), he did not collect the money from the Drivers whereas in all other cases the kanta chartes were being collected on the spot from the Drivers and this shows that the kanta operators were under Directors that the amount charged was not to be collected for the vehicles which actually did not arrive at the said Avon Dharamkanta. 4(ix) The fact that the noticee had not received and used the impugned high valued goods in their factory premises during the material period of time and only manipulated the statutory central excise records/Dharamkanta slips, is also proved from the det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vehicle was at Korba on 28.11.04 469 02.12.04 9290 23.11.04 Al. Rod 10860 23.11.04 CG-12 9309 02.12.04 The vehicle was at Korba on 24.11.04 470 02.12.04 9396 25.11.04 Al. Rod 10870 25.11.04 CG-12ZC 1050 02.12.04 The vehicle was at Korba on 02.12.04 527 28.12.04 10548 17.12.04 Al. Sheet 111417 17.12.04 CG-12ZC 1743 28.12.04 The vehicle was at Korba on 20.12.04, 22.12.04 27.12.04 565 06.01.05 10606 25.12.04 Al. Rod 11051 25.12.04 HR-38H 9951 06.01.05 The vehicle was at Korba on 08.01.05 584 585 12.01.05 10813 10854 27/28.12.04 Al. Rod. 11075/11083 27.12.04 HR-29D 5112 12.01.05 The vehicle was at Korba on 31.12.04 08.01.05 619 620 28.01.05 11794 11796 20.01.05 Al.Rod 11594 11593 20.01.05 HR-29D 5112 28.01.05 The vehicle was at Korba on 22.01.05 24.01.05 637 08.02.05 11835 21.01.05 Al.Sheet 111591 21.01.05 HR-29D 5112 08.02.05 The vechicle was at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2005 HR29D- 5112 20.08.2005 This vehicle was at Korba on 20.08.2005 296 20.08.05 4481 23.07.2005 Al.Rod 10458 23.07.2005 HR38H- 9961 20.08.2005 The transit was shown from 23.07.2005 to 20.08.2005 but this vehicle was at Korba on 10.08.2005 380 29.09.05 7282 13.09.2005 Al.Sheet 112534 13.09.2005 MP53H- 0016 29.09.2005 This vehicle was at Korba on 30.09.2005 396 05.10.05 7442 17.09.2005 Al.Sheet 112701 17.09.2005 HR38L- 4501 05.10.2005 This vehicle was at Korba on 02.10.2005 413 13.10.05 8460 02.10.2005 Al.Sheet 112840 02.10.2005 HR38L- 4511 13.10.2005 This vehicle was at Korba on 15.10.2005 8. On perusal of the impugned order, particularly the reproduced portion of the finding, we are of the prima facie view that the Adjudicating Authority has confirmed the duty demand against the appellant on careful analysis of the evidence. As such, the impugned order cannot be faulted. From the chart reproduced above, it is prima facie apparent that the claim of the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n his statement dated 13.04.2009 has admitted that no goods of M/s. Padia Industries were transported and on their request, they had only provided some blank GRs with registration number of some trucks owned by them. Total credit availed on the basis of invoices issued by M/s. Padia Industries is about Rs. 46 Lakhs. As regards the invoices issued by M/s. Aspen Online, a company controlled by Shri Rajesh Mahajan and his wife, on the basis of which cenvat credit of about Rs. 11 Lakhs has been taken by M/s. Alliance Alloys, inquiry with the owners of the trucks, whose registration number are mentioned on the invoices, revealed that those trucks had not been used for transportation. 12. As discussed in para-T of the impugned order-in-original, the Appellant company during the period of dispute was mainly manufacturing ADC-12 and HD2G grade of Aluminium alloys having Aluminium content of 84% to 85% and some quantity of HSIH grade with Aluminium content of 88% -89%, LM-6f/LM-9 grade with Aluminium content of 87%-88% and ADC-6 grade with Aluminium content of 94% to 95%. We prima facie agree with the Commissioner's findings that Technologically, all these grades of Aluminium could be man ..... X X X X Extracts X X X X X X X X Extracts X X X X
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