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TMI Blog2016 (10) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... d and therefore the impugned order qua demanding duty of ₹ 93,13,644/- is not correct. Denial of credit of ₹ 16,27,231/- on the ground that only invoices have been received in the factory and not the goods have been received - Held that: - To find out truth whether the goods have been accompanied with the invoices or not the statement of the transporter is required but no statement of the transporter has been recorded by the revenue. The allegation of the appellant that the statement of Shri Manjeet Singh obtained under duress is required to be addressed by the adjudicating authority. Therefore, the impugned order lacks merits. Demand of duty, denial of CENVAT credit and imposition of penalties set aside - matter remanded - appeal allowed. - E/3019-3021/2011-Ex(DB) and E/26-28/2012 - Final Order No 61152-61154/2016 and 61214-61216/2016- - Dated:- 20-7-2016 - Mr. Ashok Jindal, Member (Judicial) and Mr. V.Padmanabhan, Member (Technical) Shri K.K. Anand, Advocate-for the appellant Shri G.M. Sharma, A.R.-for the respondent ORDER The appellants are in appeals against impugned order wherein the Commissioner (Appeals) has passed the following orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of Rule 15(2) of the Cenvat Credit Rules, 2004. However, in terms of proviso to Section 11AC if the entire amount of both the above demands of Central Excise Duty and Cenvat Credit duty and the interest as due thereon, is paid by the party within 30 days from the date of receipt of this order, then the amount of penalty will be equal to 25% of the total amount of demands of duty and cenvat credit (i.e.) ₹ 1,09,40,875/- in total) so determined provided the reduced amount of penalty is also paid within 30 days from the date of receipt of this order. Further, no separate penalty under Rule 25 of the Central Excise Rules, 2002, as proposed in the show cuase notice, is required to be imposed for the same offence once the penalty has been imposed under section 11AC of the Act. (vi) I impose penalty of ₹ 20,00,000/- (Rupees Twenty lacs only) on Shri Sunil Mangla, Director M/s S.H. Haryana Wires Ltd. under Rule 26(1) of the Central Excise Rules, 2002. (vii) I impose penalty of ₹ 10,00,000/- (Rupees Ten Lakhs only) on Sh. Anil Kaushik, Senior Marketing Manager, M/s S.H. Haryana Wires ltd. under rule 26(1) of the Central Excise Rules, 2002. (viii) I impose pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at in the software, spool has passed the quality control test after which status PS allotted to particular spool thereafter goods are weight and ready to dispatch for final labelling is affixed on the same Y status is given to the said goods. As per the department, the appellant has cleared 19090.01 Kgs of finished goods to which temporary invoices were allotted. It is the case of the Revenue that in respect of the spoon mentioned in respect of spoon mentioned the temporary invoice allotted quality control test and final labels were printed on those spools. For remaining, it is submitted that the demand is based on RUD 22 on the allegation that the appellant has cleared 3749 spools without payment of duty as they have passed quality control test and final labelling were printed against those clearances. It is his contention that the duty has been confirmed on the ground that where remarks PS of QC and remarks Y in final label print column were found on the spools of the finished goods were not found entered in RG-1 register. Therefore, it was presumed that the goods have been cleared clandestinely. It is his submission that majority of duty demand is based on RUD 22 which rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the adjudicating authority has not given the finding on this. He further submits that one spool was showing weight of 50000 kg which is practically impossible. On this, there is no finding was given by the adjudicating authority. Therefore, he submits that if the quantity of 1,52,997 which was lying in Q location and includes quantity of 50000 kg on a single spool and quantity of 19090.01 against which temporary invoices were issued was lying in de-location. Further a quantity of 37208.98 is difference between the actual stock available on 4.6.2009 and allowance of which has not been given by the DGCEI. If the above quantity taken into consideration, then there is no case of the department, in that circumstance, it is prayed that the impugned order quo demanding duty is to be set aside. 6. He further submits that it has not been considered that the whole case is based on private/internal records which cannot be made the sole basis for demanding duty unless independent and corroborate evidence about clandestine removal is brought on record. Although the investigating authority has recorded several statements from the official of the main appellant as well as its directors, nobo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... back in cash to Shri Sunil Mangla, Director of the man appellant. Through shri Ved Prakash who was his trusted worker. Shri Chander Bose, security supervisor in his statement stated a number of time he had made entries in the inward registers without making entry in the receipt book. Shri Manjeet Singh in his statement dated 12.7.2007 admitted that the facts stated by Shri Chander Bose. However, in his statement Shri Sunil Mangla categorically denied the charges that Shri Manjeet Singh and he was confronted with the statements of Shri Chander Bose and Shri Manjeet Singh. The main appellant sought cross examination of the witnesses on whose statements reliance was placed in the show cause notice but the same was not provided hence the said statements are not having the evidentiary value. 8. Further no statement of any transporter has been recorded to reveal the truth. It is contention of the appellant that the statements of Sh. Manjeet Singh, Proprietor and authorised signatory of M/s. Narang Metal were taken under duress. Moreover, Shri Chander Bose and Shri Harvir Singh have retracted their statements. In the absence of any corroborative evidence, the inculpatory statement can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the impugned order. There is discrepancy in calculating the closing stock. That query is required to be ascertianed by the adjudicating authority. Further, we have seen that on a spool of one kg 50000 kgs of winding wiers cannot be wounded which is practically impossible and the same has been shown by the appellant in their records maintained by them which is not correct by any stretch of imagination. That issue is to be addressed by both sides. We further find that the issue of quantity of 19.090.01 kgs on account of temporary invoices were shown as location D have not been addressed by the adjudicating authority. 14. We find that no evidence has been brought on record to allege clandestinely removal. It is well settled law that following parameters are essentially required to be proved for arriving at a conclusion of alleged clandestine removal: (i) That excess raw material was received (ii) incidence of actual removal of finished goods (iii) identification of the alleged buyers of finished goods (iv) Factum of transportation of raw material as well as finished goods clandestinely (v) Receipt of sale proceeds through cheque or cash. (vi) Use of excess elect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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