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TMI Blog2017 (5) TMI 1190X X X X Extracts X X X X X X X X Extracts X X X X ..... n imposed on the assessee appellant, I take the lenient view and reduce penalty imposed on Shri Agrawal of ₹ 2 lakhs to ₹ 50,000/- only. Appeal allowed - decided partly in favor of appellant. - E/53060/2016-SM & E/53088/2016 - Final Order No. 53172-53173/2017 - Dated:- 21-4-2017 - Mr. Ashok K. Arya, Member (Technical) None - for the appellant Shri G.R. Singh, D.R. - for the respondent ORDER Per Ashok K. Arya : The appellants M/s Goyal Energy Steel Pvt. Ltd. and Shri Deepak Agrawal are in appeal against Orders-in-Appeal No. 118 122 dated 14.9.2016 and 19.9.2016 passed by Commissioner (Appeals) whereunder demand of duty of ₹ 9,02,374/- along with equivalent penalty and individual penalty of ₹ 2 lakhs on Shri Deepak Agrawal has been sustained. 2. The brief facts are that : (i) M/s Goyal Energy Steel Pvt. Ltd., Raipur, the Appellant No. 1 is a registered manufacturer, engaged in the manufacture of MS ingots and hot rolled products of iron and steel falling under Chapter 72 of the Central Excise Tariff. (ii) The Appellant No. 2 is one of the Directors of the Appellant No. 1 and was responsible for day to day activiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce having direct nexus or relating to the appellant was found and recovered from the premises of the said company ISPPL by the officers. (ii) The genuineness of the Pen Drive and the said Ledger Account is suspicious and cannot be relied upon as evidence against the appellant. (iii) Even if the offence of evasion of duty was committed, it was committed by Shri Pankaj Jain and his company and not by the appellant. Therefore, it is not justifiable to penalise the appellant for no fault at its end. (iv) The name of the agent, i.e. Kailash through which the transaction has taken place, is also mentioned in the said Ledger Account, but he has not been summoned and interrogated by the Investigating Authorities. (v) It is explicit that the said Ledger Account said to have been retrieved from the Pen Drive has no relation with the business activities of the appellant. Also no document belonging to the appellant is recovered from the premises of the appellant. (vi) The third party evidence has no evidentiary value unless corroborated with some other records. (vii) The investigating authorities did not find any discrepancy in the records of the appellant. (viii) The sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Assistant Collector of Customs, Madras-I Vs. Govindasamy Raghupathy 1998 (98) ELT 50 (Mad). In the light of this settled legal position, there was no need for the Department to collect further evidences to prove the clandestine removal of the goods without payment of duty after the acceptance of the facts by both the parties, i.e. seller of the goods and the buyer of the goods. In such circumstances, where both parties admit the facts of clandestine removal of the goods, there is very likelihood of allegation of harassment on the Department. In order to avoid such allegations, the Department has to take each step very consciously. Thus, abstaining of the Department from further investigation does not make the case weak in any sense, especially when the facts of evasion of duty have been admitted by both parties. (v) The appellant has not asked for cross-examination of any of the persons concerned in order to prove that the third party evidences are not reliable evidence. Neither have they proved with any other concrete evidence that the genuineness and veracity of the figures contained in the Pen Drive and the said Ledger Account on the basis of which the demand was made aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee is proved by the statement of Director of appellant assessee Shri Deepak Agrawal, there is no defence available with the appellants that said raw material was not received by them. The use of the said raw material in the manufacturing is also confirmed by the statement of Shri Deepak Agrawal, Director appellant in his statement dated 10.2.2013 recorded under Section 14 of the Central Excise Act, which is an admissible evidence. The said statement has not been retracted all along by Shri Deepak Agrawal. Further, the appellants have voluntarily deposited the duty payable on such manufacturing amounting to ₹ 9,02,374/- vide Challan No. 50070 dated 15.2.2012 before the Revenue issued Show dated 30.9.2013. Hon ble Supreme Court in the case of CCE Vs. Systems Components Pvt. Ltd. - 2004 (165) ELT 136 (SC) has held that once the facts have been admitted by the assessee there is no need for the Revenue to prove such facts again. 6.1 Further, there is no evidence produced by the appellant to indicate that there was no receipt of said raw material and there was no manufacturing on their part out of the said raw material. On the other hand, the statements on record proved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he books of accounts and the case so received having been used in their day to day and other miscellaneous expenses, has been admitted/accepted by the Noticee No. 2, Shri Deepak Agrawal, Director of Noticee No. 1 in his statement dated 10.2.2012. I find that the Noticee No. 1 accepting their liability in this case, have deposited the Central Excise duty amounting to ₹ 9,02,374/- (including Ed. Cess and SHE Cess) avide Challan No. 50070 dated 15.2.2012. 18.5 Under the circumstances that the issuance of parallel invoices, which fact duly corroborated from the entries recorded in the Sale Ledger (Sales Local) of M/s Indian Steel, Raipur and the admission of facts thereto by Shri Pankaj Jain, Director of M/s Indian Steel, Raipur, receipt of unaccounted materials and surreptitious disposal of resultant finished goods viz. re-rolled products has been accepted by the Noticee No. 1, hence, I do not hesitate to confirm the demand of Central Excise duty amounting to ₹ 9,02,374/- (including Ed. Cess and SHE Cess) as proposed in the Show Cause Notice. Shri Deepak Agrawal, the Notice No. 2, in his written submission, has taken the plea that he was forced to admit manufacture and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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