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TMI Blog2017 (10) TMI 553X X X X Extracts X X X X X X X X Extracts X X X X ..... Rangarajan that they were concerning themselves in the activities of clandestine production, removal and suppression of facts and in the case of Shri Saranana Sankar, that he was concerned with purchasing and dealing with excisable goods which he knew or reason to believe are liable for confiscation under Central Excise law. When the department themselves did not find any infraction, abetment or implicatory role on the part of Mr.Koteeswaran, his non-inclusion as a noticee in the Show Cause Notice cannot be touted as a ground by the assessee to set aside the entire proceedings ab initio. The contention of the assessee on this point will therefore not succeed. Another contention of appellant is that the when the notice states that invoices recovered from the premises of Mr. Koteeswaran are parallel sets of invoices and relied upon the statement given by him has also been relied upon, however no notice was issued to Mr. Koteeswaran - Held that: - The SCN not only encloses the mahazar drawn at the residence of Mr.Koteeswaran on 1.7.2005, but also the statement recorded from Mr.Koteeswaran and the made up file recovered under mahazar from his residence. The claim of the assessee th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessee Shri B. Balamurugan, AC (AR) Shri K.P. Muralidharan, AC (AR) For the Revenue ORDER Per Bench All these appeals emanating out of common order they are taken up for common disposal. 2.1 The facts of the case are that Aditya Ferro Alloys Pvt. Ltd., appellant in Appeal No.E/137/2009 (hereinafter referred to as assessee) are manufacturers of MS ingots, CTD bars and TMT bars. Shri C. Sukumaran is the Managing Director of the company. Based on intelligence that assessee is indulging in clandestine removal of their final products without payment of Central Excise Duty, their factory premises and office premises, residential premises of Shri. G. Rangarajan, Manager of assessee and some of the dealers premises were searched by the departmental officers and various documents seized. As a follow-up, premises of certain other dealers and the premises of Mr.Koteeswaran, Ex-Sales Representative of assessee were also searched on 02.07.2005 resulting in recovery of various documents. The search conducted at the premises of Mr. Koteeswaran, Ex-Sales Representative of assessee resulted in seizure of 53 Nos. of invoices of assessee, issued to AVA Steels, Peralam and Sr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pages 43 to 52 of the made-up file recovered from the dealer pertain to unaccounted sale of bars and rods received from assessee. 2.5 Further one of the purchase invoice No.140 dated 28.06.2005 of Sri Vari Traders for purchase of bars and rods was not accounted in the books of Shri Balaji Traders. On comparison of the said invoice with the invoices recovered from Sri Vari Traders, it appeared that the above clearance to Shri Balaji Traders was not accounted by Sri Vari Traders. The duty on the unaccounted clearances of bars and rods of assessee by Balaji Traders worked out to ₹ 1,62,751/-. 2.6 From enquiries conducted with VKN Hardwares, Tiruvarur, it appeared that assessee had cleared a quantity of 5.020 MT of CTD bars to the said dealer on 29.06.2005 but the same was not accounted by assessee in their books of accounts. The duty on the above clearance worked out to ₹ 17,961/-. Similarly, from the documents recovered from the Driver of Universal Transport, Karaikal and from the Trip Sheets in respect of the Lorries PY028 5008 and PY028 0010 submitted by Ashok Transport Service, Karaikal, it appeared that assessee had cleared bars and rods without accounting and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) Even assuming that Mr.Koteeswaran was an ex-employee of the company, he becomes an interested party having grudge and grievance against the company as he was removed from his immediate job for his misdeeds. Therefore statement of such interested person cannot be counted. (iii) All the scrap dealers, witnesses, transport people had stated that the statements had been recorded under duress during cross examination. The copy of the statement recorded from Kotteswaran was not made available to the assessee while issuing the SCN. (iv) They relied upon the ratio of the following case laws : (1) CCE, Delhi Vs. Mayfair Industries - 2016 (338) E.L.T. 594 (Tri. Del.) (2) Balajee Structurals (India) Pvt. Ltd. Vs. CCE, Raipur - 2016 (341) E.L.T. 457 (Tri. Del.) (3) CCE, Chennai Vs. Indian Steel Allied Products - 2016 (344) E.L.T. 292 (Tri. - Chennai) (4) CC CE, Bhopal Vs. Ramadevi Steels Pvt. Ltd. - 2017 (345) E.L.T. 128 (Tri. Del.) (5) Commissioner Vs. Rawalwasia Ispat Udyog Ltd. - 2017 (347) E.L.T. A126 (S.C.) (6) Golden Steel Corporation Ltd. Vs. CCE, Kolkata - 2017 (347) E.L.T. 570 (Tri. - Kolkata) (7) Shree Nakoda Isp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f notice to Koteeswaran, we find from the SCN that said Mr. Koteeswaran comes into the picture for the reason that a made up file containing certain documents was recovered from his premises. We find that 53 sets of invoices made by the assessee to AV Steels and Shri Sri Vari Traders were found; that serial numbers in the invoices were found repeated in many cases. It was also noticed that when these invoices were compared with the actual invoices of assessee, there were variations in quantity, date and party names. It also emerged that the duty mentioned in the said invoices was not paid. These parallel sets of invoices, they were found in Mr.Koteeswaran's residence were of the period from 3.7.2003 to 02.04.2004. The SCN only gives narration of the recovery and seizure of these documents from the residence of the said Mr. Koteeswaran. However, there has been no role ascribed to Mr.Koteeswaran in the whole modus operandi. Neither is there any charge or allegation in the body of the SCN that he has aided or abetted in facilitating clandestine removals/unaccounted clearances by the assessee and consequent evasion of central excise duty. On the other hand, specific contraventions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir contention that statement of Mr.Koteeswaran was not provided or that his cross-examination was conducted. 7.7 Coming to the demand of differential Central Excise duty, it is seen that whereas the SCN had proposed total demand of ₹ 39,85,598/- on various counts, each of these allegations have been analyzed in detail by the adjudicating authority. In fact, the adjudicating authority has taken note of the retraction of the earlier statements by various persons during the cross examination. After detailed analysis, the adjudicating authority has found that the charge of unaccounted procurement of raw material is not sustainable since they have been based only on the statement of scrap dealers, which have been retracted in cross examination, without any other evidence to corroborate such allegations. He has also very fairly found that the charge of unaccounted manufacture of MG ingots/CTD bars based on a sole statement of Chemist of the assessee that unit was capable of producing 7 MTs per hour, without any tangible documentary evidence, without any allegation of unaccounted production based on consumption of electricity etc. will render the said charge vague and unsustain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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