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TMI Blog2016 (12) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... and deposited in the SBI account of the appellant unit on the same day or next day, the argument that this would prove that there were no accounted sales, is not tenable or acceptable. The modus-operandi of depositing the sale proceeds in to the KVB account of Director and thereafter re-depositing or transferring the same into the account of appellant unit can only be to cover up the unaccounted clearances. By such practice, the SBI account of appellant unit would reflect such amounts as transferred /withdrawn and deposited from KVB account of Director and not as amounts received from clearances of goods. It is crystal clear that this is an effort to cover up the unaccounted sales - there has been unaccounted sales which the appellant has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sited the factory of the unit on 29-01-2003 and noted some discrepancies. The discrepancies are as follows. * Unit was not maintaining any manual records in respect of inputs/finished products regarding receipt, issue, stocks, production, clearance etc. * The unit has not preserved the copies of invoices. * The value adopted by the assessee was on the basis of whole sale price and not on the basis of MRP. 1.3 The Revenue officials recovered document of sales worth ₹ 17,38,071/- and Karur Vyasya Bank( KVB) passbook of Director of Appellant unit Mr.Dhanunjaya. The officers also recovered a statement showing sales register for the month of September 2002 in which total value of clearances was shown as ₹ 4,10,943.64/- and an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner(Appeals) upheld the demand of duty interest and equal amount of penalty imposed on the appellant unit and also the separate penalties imposed on Managing Director, Shri L.Danunjaya. Being aggrieved the appellants are now before the Tribunal. 2. On behalf of the appellants the Ld. Counsel Ms. A.S.K. Swetha submitted that the appellant has not indulged in any activity of clandestine removal. There was no concealed transactions with respect to raw materials, cash transactions, packing material, electricity consumption. The production capacity was also not doubted by revenue.She submitted that due to server failure, the appellant unit was not able to retrieve the correct/ entire data in respect of sales invoices, sale registers etc. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tely. Although there were instances of deposit of amount received from clearances in the KVB account of the Managing Director, the bank transaction statement would show that the amount so deposited has been transferred/withdrawn and deposited in the SBI account of the appellant unit on the same day or the very next day itself. That this would establish that there was no concealed transaction or clandestine removal of goods. Again that the department conducted verification of the amounts deposited in the KVB account, with that of only 3 stockists /buyers and did not conduct any verification with the remaining five super stockists /buyers. That accordingly, there was no evidence to conclude that the KVB account of the Director was used for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the value of clearances in order to be eligible for SSI exemption. 5. I have heard both sides. 6. The facts brought out from the submissions made by both sides, reveal that only part of the clearances made were accounted in SBI account of the unit. The super stockists/buyers have been making the deposits towards some part of the goods received by them in the KVB account of the Director. Though it is contended by the appellant unit that the said amounts deposited by the super stockists/buyers were withdrawn and deposited in the SBI account of the appellant unit on the same day or next day, the argument that this would prove that there were no accounted sales, is not tenable or acceptable. The modus-operandi of depositing the sale proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vities of unaccounted sales. However, the penalty of ₹ 40 000/- imposed on the Director is on the higher side. I am of the view, that the penalty of ₹ 10,000/- would meet the ends of justice. Penalty of ₹ 25,000/- has been imposed on Sri K.Shivakamini Kumar which in my opinion is unwarranted. The said person is only an employee ie., Finance Manager of the appellant unit. The penalty imposed on Shri Shiva Kamini Kumar is therefore, set aside.
8. In the result appeal No.91/2008(Gelma Frozen Creams(P)Ltd) is dismissed. Appeal No.E/92/2008 (Shiva Kamini Kumar) is allowed. Appeal No.E/93/2008 (L.Danunjayan) is partly allowed.
( Operative part of this order was pronounced in court on conclusion of the hearing ) X X X X Extracts X X X X X X X X Extracts X X X X
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