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TMI Blog2014 (8) TMI 659X X X X Extracts X X X X X X X X Extracts X X X X ..... nvoices and one unit of the appellants in the same name and style was not even registered with the Central Excise department. Mens rea was clearly manifested indicating intent to evade and to defraud governmental revenues. Penalty - it has clearly come up that M/s Narendra products have indulged in clandestine manufacture and clearance of Gutka. There were having one declared unit and they have been running a additional unit in the same name and style and that too without registration with Central Excise department. Clandestine production and clearance from unregistered unit clearly proved their intentions to defraud government revenue. Once fraud is committed, it vitiates everything. Above discussions have clearly brought out facts relating to clandestine manufacture and clearance. In view of above, extended period was also rightly invoked. Accordingly, this is fit case for imposition of penalty under Section 11AC - Decided against assessee. - E/678/1998-EX(DB), E/679/1998-EX(DB) - FINAL ORDER NO. 53155-53156/2014 - Dated:- 8-8-2014 - Mr. D.N. Panda and Mr.Manmohan Singh, JJ. For the Appellant : Ms. Surabhi Sinha, Advocate (Amicus Curiae) For the Respondent : Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00-NB(DB) dated 16/3/2000 referred the issue of Jurisdiction and remanded the case to the Commissioner concerned to examine all the issues afresh including limitation and pass appropriate orders in accordance with law after giving the appellants an opportunity of being heard in person. 5. The facts of the case in brief are that acting on an intelligence, the Central Excise Officers visited the premises of M/s Narendra products, Nai Ki Mandi, Agra on 17.12.92 and found that the appellants were engaged in the manufacture of Shankar Gutka. M/s Narendra Products, Nai Ki Mandi was holding a central excise licence for the manufacture of pan masala/gutka. Shri Narendra Kumar, proprietor of M/s Narendra Products, Nai Ki Mandi in his statement recorded on 3.1.93 stated that in the beginning, they were manufacturing Lehar brand tobacco mix pan masala/gutka; that since Lehar tobacco mix pan masala did not succeed in the market, they stopped manufacturing it and started manufacturing Shankar Gutka. Shri Kamal Kumar, authorized signatory of M/s Narender Products in his statement stated that his younger brother, Shri Narendra Kumar was the proprietor of M/s Narendra Products. He stated th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicated by the Asstt. Commissioner. The statements of Shri Dinesh, driver, Smt. Angoori Verma, wife of Devki Nandan and Smt. Harvati wife of Shri Hari Singh were recorded. Shri Dinesh Kumar in his Statement stated that from 14.12.92, he had transported a total quantity of 225 kgs of loose unpacked zarda mix pan masala from Nai Ki Mandi unit to New Adarsh Nagar, Agra unit; that apart from him, Shri Jitendra Keshwani, younger brother of Shri Narendra Kumar, Shri Kamal Kumar, Smt. Angoori Verma and Smt. Harvati were present in Adarsh Nagar unit at the time of the visit of the officers on 17.12.92. Shri Kamal Kumar, Smt. Angoori Verma and Smt. Harwati were engaged in the packing of Gutkha at the time of visit of the officers. It was also noticed that out of 3 pouch making machine at New Adarsh Nagar unit, only one machine was working. 3 pouch making machines had, in their hoppers, a total quantity of 8.500 kgs of loose Pan Masala. In his statement, Shri Dinesh Kumar stated that apart from 7.5 kgs of loose zarda pan masala some other items were there; that New Adarsh Nagar unit was working daily from 14.12.92. Shri Dinesh Kumar stated that at the time of the visit of the officers, 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TOTAL -do- 01.07.92 to 02.01.93 10943.428 2239437.90 1030141.42 6. Narendra Prod. New Adarsh Nagar, Agra. (Appellant No. 2) 14.12.92 to 17.12.92 103.625 33160.00 15253.60 By packing of loose Pan Masala received from the Nai Ki Mandi Unit. 7. -do- Before 14.12.92 150.00 48000.00 22080.00 Shankar Gutkha sold to Shri Ram Prakash Gupta. TOTAL -do- Upto 17.12.92 253.625 81160.00 37333.60 8. It was noted by the Commissioner(Appeals) that out of the above seven demands, the appellants were only contesting demands mentioned at Sl. Nos. 2, 3 and 6 of the table above f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gutka by the appellants and therefore required confirmation of entire demand for which evidence was there and no concession was to be given for adjustments being sought by the appellants. 11. After considering the grounds of appeal and Revenue s arguments, we find that the appellants could not made different stands at different print of time. We note that this is a case of clandestine manufacture and clearance and therefore no adjustments could be considered. We note that the matter pertains to two raids and for two different manufacturing premises of which only one was registered with the Revenue for payment of Excise duty. Intent to evade duty has clearly been manifested. Further the appellants never produced relevant purchase / sale records clearly indicating that most of the activities were undertaken with fraudulent intent to evade duty. Appellants have failed to show that intent to evade was not there. We do not find any ground to interfere and accordingly uphold the demand of ₹ 5,08,118.95/- (Rupees five lakhs eight thousand one hundred eighteen and ninety five paisa only). (b) Demand for ₹ 4,07,566.65/- : 12. For this demand of ₹ 4,07,566.65/- the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 4,07,655.65/- (Rupees four lakhs seven thousand six hundred fifty five and sisty five paisa only). (C) Demand for ₹ 15,253.60/- : 14. We notice that this demand pertained to another unit of the appellant situated in Adarsh Nagar, Agra. The period involved was 14.12.92 to 17.12.92. appellants plea was that the demand was solely based on the statements of Smt. Harbati, Smt. Angoori and Sh. Dinesh; that the cross examination of these persons was denied; that there was no other corroboration to these statements; that, therefore, no demand could be confirmed based on unreliable statements of these persons. On the other hand, Ld DR drew our attention to paragraph 11 of the Commissioner (Appeals) order where he had placed reliance on the statements of these persons and that of Shri Ram Prakash Gupta (from his premises also 1 gunny bag of unaccounted Shankar brand gutka was seized) where he had admitted that he had purchased 8 gunny bags of such unaccounted Shankar gutka without bills / invoices, earlier also. He specifically pointed out the statement of Sh Dinesh Kumar, driver of 3-wheeler no. UTR 8371, who was present in the Adarsh Nagar unit at the time of raid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while the investigations were over by 27.12.93 when statement of Sh. Kailash Chander was recorded; that normal period for issue of SCN was 6 months and therefore as all the evidence was before the Revenue, the undue delay in issue of SCN was not justified and the extended period of 5 years was not invokable. Law is well settled that plea of time bar does not apply to fraud done against Revenue as has been held by Apex Court in the case of CC Vs. Candid Enterprises reported as 2001 (130) E.L.T. 404 (S.C.). 18. Also Hon ble Gujrat High Court in the case of CCE Surat-I vs. Neminath Febrics reported as 2010 (256) E.L.T. 369 (Guj) held that concept of knowledge of department authority is entirely absent. Importing of said concept in Section 11A(i) ibid or the proviso ibid would tantamount to rewriting statutory provision and rendering defined term relevant date nugatory - Once it is found that the ingredients of the proviso are satisfied, all that has to be seen as to what is the relevant date and as to whether the show cause notice has been served within a period of five years therefrom. By no stretch of imagination the concept of knowledge can be read into the provisions. To clar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in the said sub-section which only says that the period stated as to service of notice shall be excluded in computing the aforesaid period of one year or five years as the case may be. Para 16. The termini from which the period of one year or five years has to be computed is the relevant date which has been defined in sub-section (3)(ii) of Section 11A of the Act. A plain reading of the said definition shows that the concept of knowledge by the departmental authority is entirely absent. Hence, if one imports such concept in sub-section (1) of Section 11A of the Act or the proviso thereunder it would tantamount to rewriting the statutory provision and no canon of interpretation permits such an exercise by any Court. If it is not open to the superior court to either add or substitute words in a statute such right cannot be available to a statutory Tribunal. Para 17. The proviso cannot be read to mean that because there is knowledge the suppression which stands established disappears. Similarly the concept of reasonable period of limitation which is sought to be read into the provision by some of the orders of the Tribunal also cannot be permitted in law when the sta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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