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TMI Blog2015 (11) TMI 1039X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants have contradicted this allegation or said anything about this allegation. We also find that the incriminating documents recovered from M/s. SKT i.e. the office of the transport commission agent Shri Chandrakant Nathwani (appellant No. 17) clearly indicates the vehicle number, date, weighment of the goods, the destination where the goods are unloaded and other details. Number of other officers were offered for cross-examination and were cross-examined. We do not find any consequence coming out from such cross-examination. We have also gone through the various case laws submitted by the appellant relating to cross-examination. We find, as mentioned earlier, the two persons who did not turn up for cross-examination are the co-noticees and in view of this Tribunal s decision in the case of Maya Mahal Industries reported in [1995 (3) TMI 260 - CEGAT, NEW DELHI] and also in view of Article 20(3) of the Constitution of India, the two cannot be forced for cross-examination. - purported consignee as per the invoice was different from the actual consignee who were Viramgam based traders. Thus, the manipulation in the name of consignee was done with the sole purpose of evading exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 3. Such H.R. trimmings are used in the manufacture of MS wires. Such wires, in turn, are used for the manufacture of nails, barbing, fencing, etc. The manufacture of MS wires, nails, barbed fencing wires etc. is carried out by large number of small scale units, who are availing SSI exemption. A large number of such units are located in and around Viramgam in the State of Gujarat. Such units are located mainly in Amreli, Keshod, Lakhator, Limbadi, Malpur, Mawa, Mehsana, Vijapur, Watwa, Viramgam, etc. In fact, Viramgam appears to be the main centre. 2. The HR trimmings are sold by appellant No. 18 by online auction process. Such H.R. trimmings are purchased by certain traders based in Viramgam (appellant Nos. 11, 12, 13, 14, 15 and 16) and also Indore based traders (appellant Nos. 9 and 10). Such HR trimmings are cleared by appellant No. 18 on payment of appropriate Central Excise duty and by issuing corresponding invoices indicating details of duty payments. Since the material is used by small scale industry which are not required to pay excise duty, CENVAT credit of duty paid on such H.R. trimmings are not available to SSI units. Duty paying invoices are therefore not usable b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansported to Viramgam and to the trader/SSI unit or as per the instruction of the broker/traders (appellants Nos. 9 to 16) or brokers/dealers (appellant Nos. 4 to 8). Appellant No. 17 was also ensuring that documents received from Appellant No. 18 are sent to main appellant or broker/dealers (appellant No. 4 to 8). Further, appellant No. 17 was handing over fictitious documents to the driver from Kamleshwar/Nagpur to Viramgam for any checking during transportation. Similarly, appellant No.16 is a transport-commission agent who was transporting the HR trimmings from appellant No. 18 s unit located in Dolvi/Taloja near Mumbai to Viramgam and the corresponding documents to either appellant No.4 (or his companies) or appellant No. 8 or the main appellant. Further fictitious documents for safe passage from Dolvi/Taloja to Viramgam were also handled by him. Benefit of fraudulently availed credit was distributed between various appellants. Incidentally, more than 90% of the demands pertains to invoices pertaining to Kamleshwar, Nagpur unit and remaining 10% to Dolvi/Taloja unit. 3. Thus, the case of the Revenue is that the main appellant in the present case has availed CENVAT credit on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty on the main appellant. Further penalty was also imposed on all other appellants i.e. appellant No. 2 to 18 for their role in the fraudulent transactions. 6. The main submission of the learned counsel for the main appellant, appellant No. 2, who is the Managing Director of the main appellant and appellant No.3, who is the General Manager of the main appellant is that the statements of certain witnesses, whose statements have been relied upon, did not turn up for cross-examination. The learned counsel s grievance was mainly with reference to Mr. Pawan Agarwal (appellant No. 4) and Mr. Manish Agarwal, (appellant No. 8) as also Shri A.P. Dutta, Investigating Officer of DGCEI, who investigated the present case. The learned counsel further submitted that the statements of witnesses who had not turn up for cross-examination have no evidentiary value and in support of the same he submitted the following case laws: (i) Arsh Casting vs. Commissioner of Central Excise 1996 (81) ELT 276; (ii) Nu-Trend Business Machines vs. Commissioner of Central Excise 2002 (141) ELT 119; (iii) Meenakshi Re-Rollers vs. Commissioner of Central Excise - Final Order No. A/843-844/13/EB/C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the statements of Viramgam based trader do not have evidentiary value. The learned counsel further submitted that the absence of lorry receipts does not prove that the scrap from Ispat Industries is not received by the appellants. It was submitted that the main appellant availed credit on the basis of valid invoices and nowhere the law prescribes that lorry receipts is a necessary documents. It was submitted that for movement of the goods within the State no lorry receipts is necessary and it is only optional and discretion of the parties. It was submitted that there are many consignments where they did not have lorry receipts and still have availed CENVAT credit and Revenue has not objected the same. It was also submitted that HR trimmings/scrap purchased by the appellants from Ispat Industries are lower in price than the HR trimmings and scrap required by wire drawing units in Viramgam. It was also submitted that reliance placed on the third party evidences, in the absence of corroborative evidence is inadmissible. It was further submitted that statement of Shri Manish Agarwal has no evidentiary value, that payments made by them during investigation was made under protest. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 75 (Bom.) 10. It was submitted that the appellant No.2 was not looking after the day-to-day affairs of the appellant-company and therefore imposition of penalty on him is incorrect and arbitrary. Further, appellant No.3 has not admitted anything and therefore no penalty should be imposed on him. 11. The learned counsel appearing for appellants Nos., 4, 5 and 6 submitted that there is no findings about the role of the appellants. Further, the department has not investigated the role of Viramgam based broker. It was further submitted that no penalty is imposable under Rule 26 as there is no proposal to confiscate the goods in the show cause notice and in support of the same, the learned counsel submitted the following case laws: (i) Elengo Ravi 2006 (198) ELT 47 (Tri.-Bang.) (ii) Santogen Silk Mills 2006 (199) ELT 69 (Tri.-Mumbai) (iii) Cosmo Films Ltd. 2006 (202) ELT 131 (Tri.-Mumbai) (iv) Vishal Shah 2007 (201) ELT 135 (Tri.-Mumbai) 12. It was further submitted that the impugned order levies penalties on the company as well as on the Director of the company and penalty cannot be levied on the two persons for the same offence. It was further submitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise invoices and he has to pay by Demand Draft on their behalf to appellant No. 18. He further submitted that he has only helped in the sale of excise invoices or transfer of funds through angadia services and he has not dealt with the physical delivery of the goods. It was submitted that since his client has dealt with only invoices and payments he is not concerned with the excisable goods so cleared and, therefore, there is no question of imposition of penalty under Rule 26. Rule 26 was amended w.e.f. 01/03/2007 and for the prior period the same cannot be applied. 16. The learned counsel on behalf of appellant No. 9 submitted that they are trading in iron and steel and participated in online auction and appellant is only a bidder and not buyer or receiver of the said goods. He further submitted that the adjudicating authority in para 253 of the impugned order has observed that change in billing address is a common in the said business and it is not an irregular or illegal activity. It was further submitted that the show cause notice only makes a general allegation about all co-noticees and does not enumerate the exact role of the appellant. The learned counsel submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t his client has paid the duty on the H.R. Trimmings and have followed all the excise laws strictly and the goods have been cleared after payment of appropriate duty and the goods are therefore not liable to confiscation under Rule 25 and therefore, there is no question of any penalty on his client under Rule 26. The learned counsel also quoted few judgments in their own case wherein no penalty was imposed on his client. 21. The learned Additional Commissioner (AR) reiterated the various points made in the investigation. The learned ARs first submission is that the learned counsel for the main appellant has not stated anything in defence of the allegation made against the main appellant but has only attempted to find out some imaginary missing links in the investigation. The learned AR submitted that the present appellant in the past has been found to avail CENVAT credit on the basis of fake invoices in the case reported in 2013 (293) ELT 417. It was further submitted that except the fact that the appellant has taken CENVAT credit based on the invoices issued by Ispat Industries, appellant has not produced any document whatsoever to prove the receipt of H.R. trimmings. There wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prove that the CENVAT availed by him is corresponding to the goods received by him. The learned AR further submitted that the department has permitted cross-examination of all the persons including investigating officer and it is only a few people who did not turn up when the cross-examination was carried out. The main person Shri Chandrakant Nathwani, appellant No. 17 who has transported more than 90% of the goods stood to his statement. The learned AR further submitted that even without the cross-examination of the said official and other persons case stands on its own leg and therefore no harm or prejudice has been caused to the main appellant. 22. As far as appellant No. 2 and 3 are concerned the learned Additional Commissioner (AR) submitted that these people were the Managing Director and General Manager who were looking after the day to day affairs of the company and such thing cannot happen without their active connivance and therefore they are liable to penalty. As far as appellants Nos. 4, 5, and 6 are concerned, they are the people who were instrumental or link between the invoice seller and the invoice purchaser i.e., between the bidders and the main appellant and wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the consignee should have been some units based in Viramgam. But their document/invoices showed Maharashtra based Ingot manufacturers / steel furnace units. Further, almost all invoices indicate Gujarat registered vehicle who are not permitted to move freight from one place to other in Maharashtra. Some of the vehicles were three wheelers, oil tankers, etc. In view of the said fact, penalty is impossible on appellant No. 18. The learned AR relies on the judgment of this Tribunal in the case of main appellant Bhagwati Steelcast Ltd. vs. Commissioner of Central Excise, Nashik 2013 (293) ELT 417 (Tri.Mumbai.). The learned AR further submitted following case laws in support of his various contentions: (a) Sanjay Vimalbhai Deora vs. CESTAT 2014 (306) ELT 533 (Guj.); (b) Joaquim Alemao vs. Commissioner of Customs 2005 (188) ELT 231. 23. We have carefully considered the rival submissions of both the sides. The main allegation against the appellant is that they have taken the CENVAT credit without receiving the goods covered by the corresponding invoices. A somewhat similar issue has come up before this Tribunal in another case of main appellant viz. Bhagwati Steelcast Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d therein paid on any inputs or capital goods and received by the manufacturer for use in or in relation to the manufacture of final products. Rule 4 of the said Rule stipulates that Cenvat credit in respect of inputs may be taken immediately on receipt of the inputs in the factory of the manufacturer or in the premises of the provider of output service. Rule 9 of Cenvat Credit Rules, 2004 deals with the documents and accounts on the basis of which the Cenvat credit can be taken and this includes an invoice issued by a manufacturer, an importer, a first stage dealer or second stage dealer. Sub-rule (2) further stipulates that no Cenvat credit shall be taken unless all the particulars as prescribed under the Central Excise Rules, 2002 or the Service Tax Rules, 1994 are contained in the said document. In case any particulars are missing, Cenvat credit may be taken only with the prior approval of the jurisdictional Asst./Dy. Commissioner of Central Excise, if he is satisfied that the goods or service covered by the document have been received and accounted for in the books of account of the receiver. Sub-rule (4) of the said rule further stipulates that the Cenvat credit in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re he is familiar with or on the strength of a certificate issued to the manufacturer or supplier by the jurisdictional Superintendent of Central Excise. 73.5 The Central Excise duty regime underwent a significant change with effect from 1-10-1996. Under the new regime, assessment of the tax liability by the department which hitherto existed was done away with and self assessment facility was extended to the assessees. 73.6 Paragraphs 134 and 135 of the Finance Minister s Budget Speech for the year 1996-97 lucidly explains the new regime which was introduced. 134. Our excise procedures are outdated and not in tune with the times. They need to be modified. They should encourage voluntary compliance with tax laws by the tax payers. With effect from 1st October, 1996, assessees would no longer be required to furnish copies of invoices along with the monthly returns. All that they would be required to furnish to the excise department will be a simple Return indicating the duty paid on self-assessment basis. Wherever possible the assessees computers could also be linked to the Departments computers for on line assessment. 135. I also propose to introduce a scheme of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res of rupees without any transport documents whatsoever. The main appellants claim that he has paid for the transportation of the goods, but during the original adjudication as also before this Tribunal, main appellants has not produced consignmentwise details supported by any voucher etc. of any amount paid to any transporter of such H.R. Trimmings. In fact, if the H.R. Trimmings were received by them, there was no reason that the appellant could not have produced such transportation details during the adjudication of the case or before this Tribunal. It is strange that the General Manager of the main appellant in the initial statement claimed that the transportation is being arranged by M/s. Ispat Industries and the freight is being paid by them. It was only during confrontational joint statement that he was compelled to admit that transportation is not being arranged by M/s. Ispat Industries and they are not paying freight charges. From that time onwards main appellant started claiming that they themselves were paying freight charges. We also find that it is a normal established practice that the truck driver would collect the freight charges either from the consignor or from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... many a times the cash was sent to appellants Nos. 4 and 8 to get the same converted into Demand Draft and submitted to M/s. Ispat Industries Ltd. Sometime, even the bidders themselves have got the demand drafts and sent either to these brokers or to Mr. Chandrakant Nathwani. The main submission of the learned counsel that Shri Pawankumar Agarwal, Shri Manish Agarwal and Shri A.P. Dutta, Investigating Officer were not made available for cross-examination, we note that the said persons were called by the adjudicating Commissioner but did not turn up. We note that Shri Pawankumar Agarwal and Shri Manish Agarwal are the co-noticees in this case. Even if we ignore the statements of these two co-noticees, even then whole case would stand on its own foot. We also note that no statements of Shri A. P. Dutta were recorded. Even Shri Duta presented himself on one occasion for cross-examination but could not be cross-examined. We also note that number of other officers were offered for cross-examination and were cross-examined. We do not find any consequence coming out from such cross-examination. We have also gone through the various case laws submitted by the appellant relating to cross-ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e use of oil tankers, autorikshaw, etc. for the transportation of scrap. May be in this particular case, the number of such vehicles are few but the fact is that such modus operandi was being used and few numbers will not make any difference. While it may be true that there is no requirement under the Central Excise Rules to keep the lorry receipts, but when the transportation of the goods is being questioned and the Revenue has been able to produce a catena of evidences, the appellant was required to produce at least some independent evidences relating to the transportation of the goods from Nagpur/Dolvi to their unit. We find that the appellants have not been able to produce any document to support their claim that the goods were transported from Nagpur/Dolvi to Nasik and received in their factory. Even otherwise, we do not find that it will make any commercial sense for the main appellant to use HR trimmings instead of bazaar or scavenger scrap. We also note that all these evidences were shown to the Managing Director of the main appellant, who after going through the statements and other evidences, could not say anything as to why these are wrong. On the contrary, he accepted a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant after receiving the cash through Angadia services or the Demand Drafts were made by Shri Pawankumar Agarwal or Shri Manish Agarwal, and sometime even the bidder based in Viramgam. Making the payments through banking channel is only part of manipulation to give colours of genuine transaction. 28. The learned counsel s submission that extended period of limitation is not applicable, this contention is required to be outrightly rejected as this is a case of fraudulent availment of CENVAT credit by producing documents without receiving the goods. The fact that the unit was audited will not make any difference as during audit all that is checked up is the invoices with reference to the credit availed. We find that the whole case is based upon the information received and such modus operandi cannot be detected during the audit. The fact that the appellant was only receiving the invoices and not the goods was never in the knowledge of the department. Even otherwise, even if it is in the knowledge of the department, it is an act of fraud and extended period of five years will be available to the Revenue irrespective of the knowledge of the Revenue. We have also gone through the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment of duty, we hold that the goods are liable to confiscation under Rule 25(1)(d) and, therefore, penalties under Rule 26 on appellants No.2 and 3 are correctly imposed and accordingly their appeals are rejected. 31. As far as Shri Pawan Kumar Agarwal, appellants Nos. 4, 5 and 6 are concerned, we note that these appellants were instrumental in finding the buyer of the CENVATable invoices thereby helping in the fraudulent availment of the CENVAT credit by the main appellant. Appellant No. 5 and 6 name were appearing in the invoices of M/s. Ispat Industries Ltd. They were, therefore, concerned in dealing with the excisable goods which they knew are liable to confiscation and therefore, penalty under Rule 26 is correctly imposed and we uphold the same. As far as the quantum of penalty is concerned, we find force in the argument of the Consultant of these three appellants. We accordingly, reduce the penalty amount on appellant No. 2 to ₹ 4 lakhs and on appellants Nos. 5 and 6 to ₹ 2 lakhs each. 32. As far as appellant No. 7 is concerned, learned counsel for the appellant has submitted that the said company was owned by Shri Ramavtar Aggarwal who was not concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enes any of the provisions of these rules or the notifications issued under these rules with intent to evade payment of duty, then, all such goods shall be liable to confiscation and the producer or manufacturer or registered person of the warehouse or a registered dealer, as the case may be, shall be liable to a penalty not exceeding the duty on the exciseable goods in respect of which any contravention of the nature referred to in clause (a) or clause (b) or clause (c) or clause (d) has been committed, or [rupees two thousand] whichever is greater. (2) An order under sub-rule (1) shall be issued by the Central Excise Officer, following the principles of natural justice. Rule 26. Penalty for certain offences : (1) Any person who acquires possession of, or is in any way concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing, or in any other manner deals with, any excisable goods which he knows or has reason to believe are liable to confiscation under the Act or these rides, shall be liable to a penalty not exceeding the duty on such goods or [two thousand rupees], whichever is greater. (2) Any person, who issues- (i) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods which were liable to confiscation inasmuch as the appellant claimed to have sold the goods in respect of which the cenvat credit was taken. In such a case, Rule 25(1)(d) and 26(1) are also applicable. The person who purports to sell goods cannot say that he was not a person concerned with the selling of goods and merely issued invoice or that he did not contravene a provision relating to evasion of duty. The appellant issued invoices without delivery of goods with intent to enable evasion of duty to which effect a finding has been recorded and which finding has not been challenged. We are, thus, unable to hold that appellant was not liable to pay any penalty. 11. As regards alternative submission of the appellant, that even if there is jurisdiction to levy penalty equal to the amount of duty evaded distinction in culpability may be found in person who actually evades the duty and the person who enables the same to be done. This distinction in culpability may be required to be gone into from case to case. The Tribunal does not seem to have been conscious of this issue. 12. The penalty prescribed is admittedly not the minimum. Its quantum will thus be in discretion to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 26 is correctly imposed on him and we find that the penalty imposed is not on the higher side and we uphold the same. We also keep in mind the judgment of the hon ble High Court of Punjab Haryana in the case of Commissioner of Central Excise vs. Deepak Roadways reported in 2010 (254) ELT 26 (P H). 39. As far as the appellant No. 18, M/s. Ispat Industries Ltd. is concerned, while we note that before clearing the goods they have paid the appropriate amount of duty. However, we also note that the goods were being transported in the Gujarat registered vehicle while the consignee name and address is that of Maharashtra, and such vehicles cannot take such freight. We also note that from the documents recovered from their premises, it was very clear that they were fully aware that the HR trimmings were consigned to Viramgam based bidder and are being used by SSI units there. Under these circumstances, it was incorrect on their part to indicate the name and address of the main appellant in the present case and since they have changed the name of the consignee in spite of the fact that the goods were being transported to Viramgam or nearby area in different State. The goods are the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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