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TMI Blog2017 (12) TMI 1081X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 28.10.2005 being SCN No. DZU/INV/87/03/2597 issued to M/s Venus Costing Pvt. Ltd., Venus Loha Ltd., Venus Enterprises, Kanpur and 5 others including the present appellant. Among others, the present appellant, it is alleged, had contravened the provisions of Central Excise Act, and Rule 209A of Central Excise Rules, 1944 read with Rule 26 of Central Excise Rules, 2002 and they were instrumental in selling of pig iron at Agra, which was consigned to M/s Venus Casting Pvt. Ltd./Venus Loha Udyog Ltd. and returned this amount to M/s Venus Casting Pvt. Ltd./Venus Loha Udyog Ltd. on account of bogus purchase of M.S. Ingots, manufactured by M/s Venus Casting Pvt. Ltd./Venus Loha Udyog Ltd. to his firm. 3. The brief facts of the case are that appellant is a trading firm involved in the trading of Iron Steel Scrap and Pig Iron and not registered with the Central Excise Department. Further, the officers of DGCEI indicated that certain persons namely M/s Venus Casting Pvt. Ltd, M/s Venus Loha Udyog Ltd. and M/s Venus Enterprises were engaged in evasion of Central Excise duty by manufacturing and clandestinely/removal of MS Ingots, without payment of duty. Acting on this intelligence, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kar Nath Goyal was specifically asked as to whether pig iron which was sold to Venus Loha Udyog Ltd. through him, was sold by him in Agra and amount received from sale of pig iron at Agra was given back to M/s Venus Loha Udyog Ltd. in the form of payment for bogus purchase of MS Ingots, Shri Goel showed his inability to explain the same. Further, from the above Department is of the view that ₹ 48,36,242/- shown as paid by M/s Goyal Iron Steel Works (India), Agra for bogus purchase of 458.655 MT of MS Ingots was the sale proceed of pig Iron which was consigned to M/s Venus Loha Udyog Ltd. through the appellant. Further, the Department invoked extended period of Limitation under proviso to Section 11A (1) of Central Excise Act, 1944. 4. The appellant contested the show cause notice by filing the reply, as follows:- 4.1. The show cause notice did not cite any evidence that M/s Apparent Iron and Steel, Goa had consigned pig iron to M/s Venus Loha Udyog, through the Appellant. 4.2. The appellant had received number of consignments of MS Ingots under proper central excise invoices showing payment of duty from M/s Venus Loha Udyog, Hamirpur. Payments for these consign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of steel ingots. The Consultant stated that at the behest of the DGCEI officials Shri Goyal had given a statement that he had never received any ingots from M/s Venus Loha Udyog. The Consultant further submitted that appellant had never accepted that the money remitted by him was the sale proceeds of pig iron and there was no corroboration by the department that the amount remitted by Shri Goel was the sale proceeds of pig iron. The consultant further submitted that the confessional statement unless corroborated by other evidence, in material particulars, could not be relied upon and requested that in view of the above the show cause notice against the appellants may be dropped. 4.9 However, the learned Commissioner did not agree with the various submissions and case laws cited by the appellants and is of the view that the appellant was the proprietor of M/s Goyal Iron and Steel Works India, Agra and he was instrumental in selling of pig iron at Agra which was consigned to M/s Venus Casting Pvt. Ltd./M/s Venus Loha Udyog Ltd. and the amount received from the sale of pig iron was returned to the above mentioned firms by him by showing bogus purchases of MS ingots, purported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oking extended period of limitation in the case of the appellant as the Department failed to produce any evidence on record to show that there was any intention on the part of the appellant to evade payment of duty. (D) That the learned Commissioner failed to appreciate the settled principle of Law that Apparent state of affairs is real unless the contrary is proved. In the case of the appellant the Department is unable to produce on record any evidence to prove that the appellant had not received the MS Ingots or the appellant dealt with the Pig Iron in any manner. Entire case of the Department is based upon the statement of the appellant, which was recorded under pressure, coercion. (E) That the learned Commissioner has committed a grave error by simply relying upon the retracted statement of the appellant for the purpose of imposing penalty. It is a settled principle of Law that the person cannot be held liable merely on the basis of confessional statement unless corroborated by other evidence in material particulars. (F) That the learned Commissioner failed to appreciate that there is no material evidence on record to show that M/s Apparent Iron Steel, Goa had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial, shortage of finished goods, excess consumption of resources, etc. and the confessional statements had been retracted soon after being recorded. The Hon ble High Court upheld the order of this Tribunal, observing that considering the factual matrix wherein there was no cogent evidence to sustain the allegation of clandestine removal. It was further held that confessional statements cannot form the foundation for levying Excise duty, much less retracted statements. The order of the Hon ble High Court in the case of M/s Saakeen Alloys Pvt. Ltd. was upheld by the Hon ble Supreme Court, dismissing the petition for special leave to appeal filed by the Department reported at Commissioner Vs Saakeen Alloys Pvt. Ltd.-2015 (319) ELT A117 (SC). 7. Heard the learned A.R. for Revenue. 8. Having considered the rival contentions, I find that the appellant has challenged the imposition of penalty of ₹ 50,000/- on him. Further, the appellant had given particulars of the transactions which were genuine and it was incumbent upon the Revenue Officers to have made their investigation into the nature of those transactions. So far the allegation of clandestine sale of pig iron is co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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