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TMI Blog2017 (10) TMI 1049X X X X Extracts X X X X X X X X Extracts X X X X ..... e of parallel invoices which were prepared for clandestine clearances. Hon’ble Supreme Court in the case of Union of India Versus Rajasthan Spinning & Weaving Mills [2009 (5) TMI 15 - SUPREME COURT OF INDIA] has held that duty evasion should meet penalty and such evasion should also face duty demand invoking extended period of five years. Appeal allowed - decided in favor of Revenue. - E/CO/2/10 In Appeal No. E/1160/09 - A/90235-90236/17/SMB - Dated:- 23-10-2017 - Dr. D. N. Panda, Member (Judicial) Shri N.N. Prabhudesai, Superintendent (AR) for Appellant Shri H.G. Dharmadhikari, Advocate for Respondent ORDER Per: Dr. D. N. Panda Respondents M/s Gatroad Agro Bio Fuels Pvt. Ltd. (earlier M/s R. K. Remedies P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Total 553139 1.1 Shri Premchand Sharma , Excise Clerk of respondent failed to explain reasons of shortage in his statement recorded on 18/6/2003. But Shri Khimji Mulji Kalaria, Managing Director on 18/6/2003 admitted that the shortage of goods found during search was cleared without payment of duty. Accordingly duty evasion ₹ 6,92,091/- was determined and that was paid by respondent o n 18/6/2003. 1.2 The seized document at Sr. No.21 of the panchanama revealed that the same related to incoming and outgoing of 'Naptha' written by Shri Vilas Kambli, office clerk of the Respondents. He stated in his deposition that as pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by Shri Khimji on 20/6/2003 that above said incriminating documents were prepared by his excise clerk on 18/6/2003 for material already dispatched prior to that date; and these documents were prepared for making adjustments. His signatures were on the invoice no. 130 dated 16/6/03; and no. 110 dtd. 12/6/03. He admitted to produce invoices prior to invoice no.130. However, on 23/6/2007 he admitted that the goods were only RKS II which were cleared as reflected in seized documents at sr. no. 34. 1.5 One Shri Sudhir Sharma, Excise clerk of the respondent stated on 15/7/2003 that he was at Silvassa during 14/6/2003 to 17/6/2003 and that regular invoice book containing invoices from sr. no. 101 to 150 was kept in a cupboard and the key ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent by letters dated 13/8/2003 and 16/12/2003 informed that it shall deposit the evaded duty. Such payment was also made on 20/7/2003 and 15/2/2003. Therefore order of learned Commissioner (Appeals) is baseless. 4.1 The Respondent on the other hand supports order of learned Commissioner (Appeals) and claimed that there should be allowance of 5% towards evaporation loss which shall explain the shortage of goods. 5. Heard both sides perused the records. When goods were noticed by investigation as cleared clandestinely, respondent failed to explain whether clearance thereof was made paying duty. There was difference in quantity as shown on record and as physically available during inventory. Using same invoices more than once, clearan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal having been set aside by Hon ble High Court of Gujarat as reported in the case of Commissioner of Central Excise, Surat-I Versus Neminath Fabrics Pvt. Ltd. [2010 (256) E.L.T. 369 (Guj.)], order of learned Commissioner (Appeals) is erroneous. Further the Hon ble High Court of Gujarat in the case of Salasar Dyeing Printing Mills (P) Ltd. Versus C.C.E. C., Surat-I [2013 (290) E.L.T. 322 (Guj.)], held that when department acquired knowledge of fraud, collusion, wilful misstatement or suppression, etc, reckoning of five years begins from such date. 5.3 Hon ble Supreme Court in the case of Union of India Versus Rajasthan Spinning Weaving Mills [2009 (238) E.L.T. 3 (S.C.)] has held that duty evasion should meet penalty and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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