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TMI Blog2018 (10) TMI 693X X X X Extracts X X X X X X X X Extracts X X X X ..... y machinery and infrastructure to manufacture aluminium products. The department has failed to contradict the said stand of the appellant with any positive evidence to show that the appellant indeed had the infrastructure to manufacture aluminium wires - the finding in the impugned order in this regard is untenable. Cross-examination of statement - Held that:- No reliance can also be placed solely on the uncorroborated statement dated 22.05.1998 of Sh. Brajesh Batra, especially in view of his subsequent statement and cross-examination, to corroborate that the payments received in the Bank Accounts were concerning the goods manufactured by the appellant - Further, Sh. Vinod Kumar and Sh. Shrinath in their statements and cross examination have merely stated that the four Bank Accounts were opened at the behest of Sh. Brajesh Batra and were controlled by him, and that they had no knowledge regarding the source and purpose of the said cheques. Nothing incriminating comes from the said statements. The department has failed to prove the charge of clandestine removal with any credible evidence. Neither was there any seizure of unaccounted raw material/ finished goods from the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of invoices. The value of these sales is ₹ 71,13,121/- on which the duty of ₹ 23,20,278/- has been demanded. The defence of the appellant is that merely on the basis of the statements of the 17 buyers, it cannot be inferred that the wires and cables supplied by M/s Batra Enterprises were of Batra Henlay brand manufactured by M/s Batra Henlay Cables. Since, this duty demand is based only on the statements of 17 buyers who had stated that they had purchased Batra Henlay brand cables from M/s Batra Enterprises and other than this, there is no evidence, in our view the cross examination of these buyers should have been allowed, which would be necessary in terms of the provisions of Section 9D (2) readwith Section 9D (1) of the Central Excise Act, 1994. In terms of Section 9D (2) the provisions of Section 9D (1) would, so far as may be, apply to any proceeding under this Act, other than the proceeding before the Court, as they apply in the proceeding before a Court. In terms of sub-Section (1) of Section 9D, which is in respect of prosecution proceedings, a statement made and signed by a person before a Gazetted Central Excise Officer in course of enquiry proceeding shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itting cross examination of the 17 buyers. In case, any of these persons are not available and the Department wishes to rely upon their statements, the directions of Hon ble Delhi High Court in the case of JK Cigarette (supra) would have to be followed for relying upon those statements i.e. specific findings would have to be given after hearing the assessee as to whether the person whose statement is to be relied upon is dead or cannot be found or is incapable of giving evidence or is being kept out of the way by the adverse party or whose presence cannot be obtained without an amount of delay or expenses, which under the circumstances of the case, the Court considers unreasonable. 8. As regards the duty demand of ₹ 66,04,307/-, the evidence on which it is based can be summarized as under :- (1) existence of four secret bank accounts account No. 347 in Ashok Vihar, New Delhi Branch of Catholic Syrian Bank Limited, account No. 3159 in Shakur Basti Branch of Punjab National Bank and account No. 4077 in Darya Ganj Delhi Branch of Indian Overseas Bank all accounts in the name of Shri Vinod Kumar, an employee of Grandlay Cinema by showing him as Propreitor of M/s B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arat Construction Corporation, M/s Larson Turbo Ltd., M/s Sterling Wilson Electricals Pvt. Ltd., M/s Unitech Ltd., M/s Switchgear Control and M/s Gwalec Electricals (P) Ltd. who had made cheque payments for the wires and cables purchased by them, the cheques were issued in the name of Batra Henlay Cables and M/s Cosmoline Electricals. All these buyers have admitted to have purchased Batra Henlay brand wires and cables from Batra Henlay Cables. 8.1 It is on this basis and all the above evidence, that the Department has alleged that the deposits totalling ₹ 2,89,47,379/- made in the above-mentioned four accounts during the period from 1994-1995 to 1997-1998 pertain to the clearances of wires and cables manufactured by M/s Batra Henlay Cables which have not been declared by them to the Department and have not been included in the value of their clearances and if value of these clearances is included they would not be eligible for full duty exemption during the period from 1995-1996 to 1997-1998 and the total differential duty payable would be ₹ 66,04,307/-. 8.2 The contention of the appellant on the other hand is that all these payments deposited in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner. If M/s Batra Henlay Cables were not having any machinery for manufacture of aluminium cables, the aluminium cables sold by them must obviously have been procured by them from other dealers and accordingly the payments received in the above-mentioned four bank accounts in respect of sales of aluminium cables cannot be treated as the payments received for sale of the cables manufactured and cleared by M/s Batra Henlay Cables. 8.5 It is also seen that while the payments in the four accounts mentioned above has been received from a large number of customers, the enquiries have been made only with 10 customers namely M/s Khandelwal Laminated Ltd., M/s Electrical Associates, M/s ETA, M/s MEC Electrical Contracts Pvt. Ltd., M/s Bharat Construction Corporation. M/s Larsen Turbo Ltd., M/s Sterling Wilson Electricals Pvt. Ltd., M/s Unitech Ltd., M/s Switchgear Control and M/s Gwalec Electricals (P) Ltd. and sales to these parties have been made under the invoices issued by M/s Batra Henlay Cables and M/s Cosmoline Electricals. No enquiry has been conducted with the remaining customers. Without any enquiry with them, it cannot be presumed that the payments made by them we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e wires, cables for internal wiring and telecom cables of various sizes under the brand name Batra Henlay . M/s Batra Enterprises is a partnership firm with Shri Brajesh Batra, Rakesh Batra and Shri Vivek Batra, brothers of Shri Rajesh Batra as its partners. Another partner of this firm is Mrs. Mala Batra wife of Shri Rajesh Batra, M/s Grandlay Cinema is a proprietary firm of Shri C.L. Batra Father of Shri Rakesh Batra, Shri Rajesh Batra, Shri Brajesh Batra and Shri Vivek Batra, M/s Batra Entrprises, M/s Batra Henlay Cables and M/s Grandlay Cinema have offices at same place. The period of dispute in this case is from 1994 - 1995 to 1997 - 1998. During this period M/s Batra Henlay were availing of SSI exemption and were not paying any duty on the ground that according to them they were under full duty exemption. The premises of M/s Batra Henlay Cables, M/s Batra Enterprises were searched by the Jurisdictional Central Excise officers on 17/01/97. At that time while M/s Batra Henlay were not registered with Central Excise Department, they had issued invoices upto 356 dated 20 th October, 1996 and after this invoice, there was only an isolated invoice N. 516 dated 28/12/96 and the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erseas Bank, it was found that the cheques received from various customers were being deposited in these accounts and thereafter the amounts credited in these accounts were being transferred to the account of M/s Devin Board in Catholic Syrian Bank Limited from where the amount were being withdrawn in cash. Shri Vinod Kumar in his statement dated 03/03/98 stated that while he is working as booking clerk in the Cinema Hall of Grandlay Cinema owned by Shri C.L. Batra, and at the instance of Shri Brajesh Batra, he had opened an account No. 347 in Catholic Syrian Bank Limited, Ashok Vihar, New Delhi in November 1994 as Proprietor of M/s Batra Henlay Cables on the introduction of Shri Naveen Mehta, a person known to Shri Brajesh Batra and that similarly he had opened an account No. 3159 in Punjab National Bank in his name as Proprietor M/s Batra Henlay Cables and account No. 367 in Catholic Syrian Bank Limited in his name as Proprietor of M/s Cosmoline Electrical and another account No. 4077 in Indian Overseas Bank in his name as Proprietor of M/s Cosmoline Electrical, that these accounts, though in his name, were being operated by Shri Brajesh Batra, that to his knowledge the amount re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viso to Section 11A (1) of Central Excise Act, 1944 for the period from 1994-1995 to 1997-1998 alongwith interest thereon uner Section 11A (1) of Central Excise Act, 1944 for the period from 1994-1995 to 1997-1998 alongwith interest thereon under Section 11AB, (b) imposition of penalty on M/s Batra Henlay Cables under Rule 173A (1) (d) of Central Excise Rules, 1944 read with Section 11AC of Central Excise Rules, 1944; (c) confiscation of land, building, plant, machinery of M/s Batra Henlay Cables under Rule 173Q (2) of the Central Excise Rules, 1944 and (d) imposition of penalty under Rule 209A of Central Excise, 2002 with Shri Rajesh Batra and Shri Brajesh Batra. The show cause notice also sought appropriation of an amount of ₹ 25,00,000/- already deposited by M/s Batra Henlay Cables during investigation. 3.3 Enquiry in respect of Batra Enterprises revealed that during period from 1994-1995 to 1997 -1998 they had sold wires and cables to worth ₹ 1,10,34,576/- to various customers. Enquiry was made with the customers and they stated that under the invoices of Batra Enterprises they had purchased Batra Henlay wires. However, it was found that during that period, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 016 was fixed for their cross examination and also for cross examination of Sh. Brajesh Batra which was also asked by the noticee‟s counsel. On 02.02.2016 Sh. Amarjeet Singh, director A.S. Malhotra Associates Pvt. Ltd. appeared and in his cross examination he stood by their earlier statement that the goods received by them were Batra Henlay brand wire and cables as they had placed order for such goods only. He also agreed that in the invoice no brand was mentioned. No one appeared on behalf of other persons except A. Jilani, vice president of M/s Sterling Wilson and Sh. Raj Kumar proprietor M/s Bijlee Construction and both of them stated that they do not remember the matter now. Personal hearing letters sent to Purvanchal Construction Works Pvt. Ltd; Jyoti Swroop Mittal; officer in charge BSES, Perfect Electricals, R.K. Sahu of Switchgear Controls were returned back by the P T with remarks left or not received or closed etc. Also letter dated 20.02.2016 was received from M/s Khandelwal Laminates Ltd. that they do not remember the case now. The contentions of the noticee here were that no seizure was effected anywhere of wire and cables with brand Batra Henlay and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alleged goods from M/s Batra Henlay Cables. Therefore, I drop the duty demand of ₹ 23,20,278/- pertaining to show cause notice dated 04.04.2001 . The ld. Counsel for the appellant states that Revenue is not in appeal against dropping of demand of ₹ 23,20,278/-. 5. So far, the demand of ₹ 66,04,307/- confirmed alongwith equal penalty against the appellant M/s Batra Henlay Cables and further penalty of ₹ 8,00,000/- on Sh. Brajesh Batra under Rule 209A of Central Excise Rules, 1944, the ld. Counsel, Mr. Ashish Batra submitted that the demand has been erroneously confirmed. The demand was quantified, proposed and confirmed in the impugned order, solely based on the transaction in the four Bank Accounts (two in the name of M/s Batra Henlay Cables and another two in the name of M/s Cosmo Line Electricals, operated by one Shri Vinod Kumar as proprietor). The person opening these four accounts as proprietor, Sh. Vinod Kumar, was an employee of grandly Cinema, a proprietorship confirm of Sh. C. L. Batra, father of Sh. Rakesh Batra, Sh. Brajesh Batra and Sh. Vivek Batra. The said Grandley Cinema was in the business of exhibition of Cinema. Offices of M/s Batra H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtment had quantified the demand based upon the deposits in the said four Bank Accounts. While remanding the matter, this Tribunal had observed that in absence of enquiry and cross-verification from the persons making the payments, presumption cannot be made that the said payments made by them were in respect of the goods manufactured and cleared by M/s Batra Henlay Cables. Ld. Commissioner had summoned the buyers whose statement was recorded during investigation, for cross-examination. Out of the 10 buyers, only one A. Jilani, Vice President of M/s Sterling Wilson appeared but he only stated that he did not remember the matter. Another buyer M/s Khandelwal Laminates, vide their letter stated that they do not remember the case now. Hence, the said enquiry yielded nothing incriminating qua the appellant and in the absence of any incriminating material, in terms of the earlier order passed by this Tribunal, the payments made in the said four bank accounts cannot be presumed to be in respect of goods manufactured and cleared by the appellant. We further find force in the submission of the appellant that the ld. Commissioner has himself while dropping the demand against M/s Batra Ent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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