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TMI Blog2017 (3) TMI 839X X X X Extracts X X X X X X X X Extracts X X X X ..... hered demonstrated scientific evasive method followed by the racket to cause subterfuge to Revenue - Documents recovered from the witnesses including the Kerala buyers proved the ill intent of appellant manufacturer and that remained intact, proving against appellant. Clandestinely removed goods were cleared under cover of dummy invoices to Bill traders/brokers and the latter receiving payments thereof in their name by demand drafts were encashed and amount in cash handed over to the appellant manufacturer after deducting their commission - Appeal dismissed - decided against the assessee. - E/411/2006, E/412/2006, E/425/2006, E/734/2006, E/735/2006, E/781/2006 & E/782/2006 - 42456-42462/2016 - Dated:- 23-12-2016 - Shri D.N. Panda, Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) None (in appeal Nos. E/425/06, E/781 782/06) Shri Mudimannan (in appeal Nos. E/411 412/06, E/734 435/06) For the appellants Shri K. Veerabhadra Reddy JC (AR) For the respondent Per: Madhu Mohan Damodhar, Member (Technical) All these appeals since emanating out of a common impugned order, they are being taken up together for common disposal. 2. Challeng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufacturer appellant submitted written notes during the hearing, explaining their case. 6. Revenue on the other hand says that it is not only the evidence emanating from weighbridge slips that was considered for the purpose of adjudication, but there were multiplicity of other evidences against the appellant manufacturer, Brokers and the bill traders who have been enriched at the cost of Revenue. All were correctly brought to the fold of law. Adjudicating authority has not left any of the evidences which were brought by investigation to confront to appellant. There was no violation of natural justice. Department has examined different persons in different times. It was a full proof case for Revenue that the goods manufactured were clandestinely removed without payment of duty and parallel invoices were issued by the bill traders who are second traders of goods and issued false invoices to accommodate the appellant manufacturer. Fake invoices issued by them were instrumental to cause evasion. Brokers collected money from the buyers and deposited the same in the bank account of bill traders and settled each other's accounts. 7. Ld. DR sought 15 days' time to submit his w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mesh Madan, the alleged mastermind of the evasion revealed the modus in his two statements spread over more than six months without any variation. Bill traders' invoices and weighment slips were seized from the Kerala buyers also. 11. Appellant repeatedly argued that the weighment slips do not show any details of party name, from where it has come, where it is going and nomenclature of the goods weighed. On examination of the weighment slips, it is noticed that data to be filled in therein is limited to Vehicle no, Material, Date, Persons, Time, Gross/Tare weight of material, and signature of customer. That had no provision to record party name or nomenclature of the goods, though the nature of material (angles etc.) is clearly indicated. The appellant did not adduce any proof to repel the contents of the weighment slip. Genuineness of the weighment certificates could not be rebutted. It was also not challenged that the weighment slips were not been issued by K.R.T. Electronic Weigh Bridge, Ekkaduthangal. Appellant's plea that statements were not recorded from the buyers clandestinely removed goods is misconceived, when record reveals that statements were recorded from K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmarized the modus operandi of each of the buyers in the entire exercise planned and executed by the appellants for evading central excise duty, which is reproduced as under :- I-BROKER a) Collects stock position from steel manufacturers b) Procures orders from Kerala buyers c) Transfers the orders to various manufacturers depending upon their stock position, size and variety. II-MANUFACTURER a) As per orders procured by brokers, supplies goods to Kerala buyers without payment off duty under parallel set of invoices through certain transporters up to the weigh bridge. b) Makes arrangement with Bill Traders to raise second sales invoices in favour of Kerala buyers and deliver them at Transport office. Recovers the parallel invoices and allows the goods to travel to the destination under the cover of the dummy second sales invoices. III-BILL TRADER Lend their bills to cover the goods cleared without payment of duty by manufacturers and gets commission from the manufacturer through the brokers. IV-TRANSPORTER a) Transports the goods to Kerala buyers under the cover of second sales invoices given by the Bill traders. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chase to collection of sale proceeds. When the evidences that would be normally available to identify an above-board transaction were being destroyed or suppressed in a conscious and calculated manner, where is the possibility for the investigating officers to produce such evidences as a direct proof to substantiate the allegations? The officer, in view of the peculiar nature of modus operandi adopted by Nav Steel, attempted the alternate and unavoidable route i.e. tracing the origin of the transactions from the buyer's end. I find from the evidences placed on record that the officers had done this in a foolproof manner and were successful in bringing to the foreground the entire gamut of such clandestine operations done not only by Nav Steel but also by various other steel manufacturers. 43. As already stated above, the evidences had been gathered from the bill traders and the brokers consequent to certain search operations conducted by surprise. The officers had recovered bills belonging to certain bill traders who were under their investigation from the trading premises of certain Kerala buyers. The bill traders admitted that the goods under such bills had actually been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of State of West Bengal Vs. Mir Mohammed Omar and others [2000(8) SCC 382 has held that: The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage the offenders in serious offences would be the major beneficiaries, and the society would be the casualty. In this case, when prosecution succeeded in establishing the afore narrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognized by the for the court to rely on in conditions such as this. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is exceedingly difficult, if not absolutely impossible, for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as parts of its primary burden. The Hon'ble High Court of Madras in the case of Alagappa Cement Ltd Vs. CEGAT [2010(260) ELT 511 (Mad)] has categorically laid that plea of absence of positive proof of commitment of offence is not a defence for the author of such plea. It is settled principle of law that law does not insist upon an impossible threshold of proof to establish allegations, but if on probabilities the statutory authorities can establish evasion, the legal standards are adequately met with. 17. From the facts on record the active roles of the Bill traders, Brokers, Transporters and Kerala buyers etc., causing evasion being conduits of the racket have come out very clearly and established by Revenue. They were instrumental for clearance of goods by M/s. Nav Steel clandestinely to the Kerala buyers and route the sale proceeds from the latter to the brokers. The brain behind the entire operation was undoubtedly Shri Umesh Madan, Director of M/s. Nav Steels. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in any civilized system of jurisprudence. It is a concept descriptive of human conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. 8.3 It has been held by Apex Court in case of Commissioner of Customs, Kandia v. Essar Oil Ltd.-2004 (172) E.L.T, 433 (S.C.) that by fraud is meant an intention to deceive; (0hether it is from any expectation of advantage to the party himself or from the ill-will towards the other is immaterial. The expression fraud involves two elements, deceit and injury to the deceived. Undue advantage obtained by the deceiver, will almost always call loss or detriment to the deceived. Similarly a fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is deception in order to gain by another s loss. It is a cheating intended to get an advantage. (See S.P. Changalvaraya Naidu V. Jagannath [1994(1) SCC 1]) . Above principles of law was reiterated by this Bench on similar facts in the case of Sri Rama Machinery Corporation and another Vs Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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