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TMI Blog2015 (2) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods had been cleared on payment of duty but the names of the buyers were different. No explanation has been given by the Appellant Company for these 13 parallel invoices recovered from the factory which also point to the evasion of duty by the Appellant Company by clandestine removal. The despatch slips were in 11 files and had been recovered alongwith the other documents pertaining to the factory like attendance register for the period from December 2006 to August 2007 and also the weighment register of Dharamkanta, also belonging to the Appellant Company. - Though the appellant plead that cross-examination all the dealers and transporters were not allowed, in our prima facie view, since this is not the only evidence to link the 11 files containing the despatch slips to the Appellant Company, at this stage, it cannot be said that the appellant have prima facie case in their favour. The Appellant Company has pleaded financial hardship, in case of a company which has indulged in large scale evasion of duty by under reporting of its production, no credibility can be attached to its profit and loss account. Moreover, though the Appellant Company has filed an application be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 45/2015 - Dated:- 21-1-2015 - Shri Rakesh Kumar And Shri S. K. Mohanty,JJ. For the Appellant : Shri Anurag Rathi, Advocate For the Respondent : Shri Pramod Kumar, Authorized Representative (Jt. CDR) ORDER Per. Rakesh Kumar :- The facts leading to filing of these appeals alongwith stay applications by the appellants are, in brief, as under. 1.1 M/s Rana Girders Ltd., Muzzafar Nagar (hereinafter referred to as the Appellant Company) are manufacturers of MS Ingots, MS Billets, MS Bars and MS Girder chargeable to Central Excise Duty. Shri Jakir Ali Rana is the Managing Director of the Appellant Company and while Shri Dinesh Gupta and Shri Sarfraz Ali are the Authorized Signatory of the appellant company, Shri Neeraj Garg is the Sales Supervisor of the appellant company. The Appellant Company manufactures MS Ingots from MS Scrap and Sponge Iron etc. and the MS Ingots are used for manufacture of MS Bars and MS Girder. The Appellant Company also purchases MS Ingots from other ingots manufacturers for use in the manufacture of MS Bars and MS Girder. The Appellant Company was availing Cenvat credit in respect of excise duty paid on the inputs and capital goods b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and (c) attendance registers of the factory from December 2006 to August 2007 except for April 2007 and May 2007. The loose papers in the 11 files appeared to be the despatch slips containing details of the despatches of the MS Bars and MS Girder date of despatch, quantity and size, weight of the goods, the customers name and address, the truck number in which the goods were despatched and the same appeared to be signed by several persons who were identified to be the Sales Manager of the appellant company and General Manager of the appellant company. On inquiry with the Dhaba owner Shri Kishan Sharma he stated that these records pertain to the Appellant Company and this fact was confirmed by Shri Dinesh Gupta and Shri Sarfraz Ali in their respective statements. It was found that these documents had been prepared by the dispatcher Shri Bilal Ahmed who on inquiry admitted to have written these documents. Inquiry was made with 30 customers and all of them admitted to have received the goods covered under those documents without any Central Excise invoice. Inquiry was also made with the 28 transporters and all of them confirmed having transported the goods mentioned in those despatch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant when no cross examination of the parties from whom these alleged parallel invoices had been recovered, was allowed, that the bulk of the duty demand is based on certain loose papers recovered from Maheteshwari Dhaba, that these loose papers do not pertain to the Appellant Company, that the statements of Shri Dinesh Gupta and Shri Sarfraz Ali stating that the documents recovered from Maheteshwari Dhaba pertain to the Appellant Company have been retracted by them, and hence no reliance can be placed on the same, that the Appellants had requested for cross examination of 30 dealers mentioned in the loose papers recovered from Maheteshwari Dhaba and 28 transporters mentioned in loose papers (despatch slips) recovered from the Dhaba, but their cross examination has been disallowed without any reason, that in view of this, the statement of the dealers and the transporters have no evidentionary value, that other than the entries in the loose papers recovered from the Dhaba, there is no evidence of unaccounted manufacture of the goods by the appellant company, which are alleged to have been cleared by them in a clandestine manner, that in any case, the Appellant Company has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Sharma, the owner of the Dhaba and also stand admitted by Shri Bilal Ahmed, the dispatcher who had prepared the despatch slips and also by Shri Dinesh Gupta and Shri Sarfraz Ali, the Authorised Signatory and Shri Neeraj Garg, the Sales Executive, that alongwith the 11 files containing the despatch slips, the attendance register of the Appellant Companys factory for the period from December 2006 to August 2007 except April 2007 and May 2007 and also the weighment register of the Dharamkanta being operated by the Appellant Company had also being recovered, that this shows that the 11 files containing the despatch slips also pertain to the Appellant Company, that each despatch slips contain the details of the sales of the MS Bars and Girder made to various parties and these details are the quantity and description of the product, the full name and address of the customers and the truck number in which the goods were despatched, that inquiry was made at random with 30 customers and all of them confirmed having received the goods covered by the despatch slips without any Central Excise invoices and similarly the inquiry with 28 transporters truck owners has also confirmed that the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clandestine removal which is also supported by the recovery of 13 parallel invoices involving duty of ₹ 6,98,495/- from the factory premises. These invoices were bearing the same number and the same date as the invoices under which the goods had been cleared on payment of duty but the names of the buyers were different. No explanation has been given by the Appellant Company for these 13 parallel invoices recovered from the factory which also point to the evasion of duty by the Appellant Company by clandestine removal. The recovery of the despatch slips from Maheteshwari Dhaba located adjacent to the factory gate has to be seen in the background of the above facts. These despatch slips were in 11 files and had been recovered alongwith the other documents pertaining to the factory like attendance register for the period from December 2006 to August 2007 and also the weighment register of Dharamkanta, also belonging to the Appellant Company. Moreover, we find that Shri Kishan Sharma, the owner of Maheteshwari Dhaba has stated that the 11 files containing the despatch slips, the attendance register and weighment register pertain to the Appellant Company, and this statement of Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty and, as such, the provision of Rule 26 are prima facie attracted in his case. Therefore, this appellant also has to be put to some conditions for considering waiver from the requirement of pre-deposit under Section 35F. 9. As regards the other appellants namely Shri Dinesh Gupta, Shri Sarfraz Ali and Shri Neeraj Garg, since they were only employees of the Appellant Company, who are acting as per the directions of the management, in our prima facie view the penalty on them under Rule 26 is not called for in view of the Tribunals judgment in the case of Z.U. Alvi vs. CCE, Bhopal reported in 2000 (117) E.L.T. 69 (Tribunal). Therefore, so far as these three appellants are concerned, the requirement of pre-deposit has to be waived for hearing of their appeals. 10. In view of the above discussion, we direct the appellant company to pay an amount of ₹ 8,00,00,000/- (Rupees Eight Crores) within a period of eight weeks for compliance with the provisions of Section 35F. This amount would be in addition to the amount of ₹ 40,00,000/- already paid by them. On payment of this amount within the stipulated period, the requirement of pre-deposit of balance amount of duty ..... 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