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TMI Blog2017 (5) TMI 950X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise officers visited the factory of the assessee and carried out search operations. During the course of examination of records maintained by the assessee, apart from invoice books which are in the form of statutory documents, two books of parallel invoices bearing the same serial numbers as that of genuine invoices were recovered indicating clandestine removal of finished goods. By comparison of these parallel invoices with the corresponding genuine invoices, the revenue officers came to the conclusion that under seven parallel invoices, yet total quantity of 67.230 mt. of finished goods have been cleared by the assessee clandestinely without payment of Central excise duty amounting to Rs. 3,10,090/-. 2. In addition to the above parall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing: a) Parallel invoices were being prepared by Sh. Kartar Singh. No excise duty was paid for the goods cleared under these invoices with the duty liability of Rs. 3,10,090/-. b) Admitted the shortage in the stock of raw materials to the extent of 2.775 MT and finished products to the extent of 450MT. c) He agreed that the quantity of goods and the invoice details shown in the GRs do not tally with the statutory records. He further admitted that these GRs have been used for clandestine removal of goods on parallel invoices with intention to evade payment of duty. d) He also admitted the fraudulent availment of cenvat credit amounting to Rs. 50 lakh and that the same was within his knowledge. Since they did not have balance of Cenva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21,361/- on short found stock of finished goods of 450 MT alleged to have been cleared clandestinely. (iii) Central Excise duty amounting to Rs. 3,10,090/- on 142.81 MT of finished goods clandestinely cleared with the help of parallel invoices. (iv) Central Excise duty amounting to Rs. 8,34,175/- on 210.04 MT of finished goods clandestinely cleared with the help of GRs. (v) Demand of Rs. 50 lakhs of fraudulently availed cenvat credit with the proposal to appropriate the said amount already deposited alongwith interest of Rs. 5,16,438/-. 7. After the due process of law, vide the impugned order, the adjudicating authority confirmed all the above proposals. He also imposed a penalty of Rs. 25 lakhs on Sh. Srivats Rathi, Director as well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d any corroborative evidence to show that goods have indeed been removed under such documents. No verification has been done either with the buyers or with the transporters who might have transported the goods. (iii) Regarding the alleged fraudulent availment of cenvat credit of Rs. 50 lakhs, he submitted that it was a genuine clerical mistake which lead to availing of excess credit in the month of October, 2007. He specifically pointed out that even during the departmental audit of the factory in December 2007, no such excess credit was noticed by the department. He also submitted that on the issue of wrongly availed credit of Rs. 50 lakhs, a separate proceedings stand initiated in which the Commissioner (Appeals) vide his order-in-appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority and he has stated the procedure adopted for stock taking. According to the witnesses, the standard weight bundles were counted and multiplied with the specific weight and loose items were weighed. This procedure, to our minds, appears entirely reasonable and cannot be faulted with at this stage specially since there has been no murmur of protest against such procedure any time before. It is also seen from record that Sh. Sanjay Mandal, authorised person of the assessee who witnessed the stock taking, Sh. Nagendra Dutt Sharma, Excise Clerk, Sh. Mahendra Kumar Kabra, Director have also, in separate statements, have concurred with the stock taking. Sh. Srivats Rathi, Director have also agreed to such shortages. In view of the above, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ished that what stands admitted need not be proved by revenue. 14. Next we turn to alleged fraudulent availment of cenvat credit of Rs. 50 lakhs. It is noteworthy that at the time of search proceedings on 21.07.2008, the RG-23A Part-II was not available prior to 10.10.2007. On a perusal of the relevant register, it was noticed by the departmental officers that the balance of credit which should have been Rs. 1,12,08,677/- has been shown as Rs. 1,62,08,677/- i.e. an excess credit of Rs. 50 lakhs has been availed and subsequently utilised. The RG-23A register was in the custody of Sh. Mahendra Kumar Kabra, Director at the tune of search. He admitted in his statement dated 21.07.2008 that on the directions of the owners of the company, he has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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