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TMI Blog2018 (11) TMI 1454X X X X Extracts X X X X X X X X Extracts X X X X ..... rading concern have not committed any illegality in dispatching goods on the basis of the delivery challan. We further find that the estimation of turnover by Revenue on the basis of MRP is erroneous. For the purpose of SSI the actual transaction value of the clearances is relevant. It is only for the purpose of calculation of duty, that MRP is taken as base and abatement allowed as notified - the mistake of fact committed by the Ld. Commissioner in the impugned order by treating the recovery of Kacchi parchi from possession of Mr Ankit Valecha, whereas it is evident from the show cause notice and the punchnama that the said Kacchi parchi were recovered from Mr Sunil Valecha, Director of ZMPL. The impugned order is unsustainable for the lack of sufficient evidence and mistake of fact - appeal allowed - decided in favor of appellant. - E/MISC/50198-50201/2018-EX (DB) Appeal No. E/52846, 52847, 52713, 53714/2015-DB - Final ORDER NO. 53317-53320/2018 - Dated:- 27-11-2018 - Shri Anil Choudhary, Member (Judicial) And Shri C.L. Mahar, Member (Technical) Shri P. K. Mittal, Advocate for the Appellant Shri S.K. Bansal, U. Sengraj, DR for the Respondent ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le of cosmetics which are excisable and subject to payment of excise duty under section 4A (MRP). The period of dispute is 1.5.2008 to 23.9.2012. The manufacture clearance is subject to provisions of Drugs Cosmetic Act. Mr. Sunil Valecha is the Director of M/s Zever Marketing Pvt Ltd., a trading concern. The partners/proprietor/directors of above concerns are related. The manufacturing firm- Jovex and H.P. were availing SSI exemption. 5. It appeared to revenue that the appellants are clearing the manufactured goods which are dutiable, without getting themselves registered with the department and without paying appropriate duty leviable. Search/ Inspection was conducted by the department on 3.10.2011 at the following premises. i. Factory premises of Jovex International (Jovex for short). ii. Office premises of Zever Marketing (P) Ltd. (ZMPL for short). iii. Godown premises of Asquire Trading Company, at Sadar Bazar, Delhi. Wherein H.P. on Hindustan Perfumers is situated). iv. Residential premises of Sunil Valecha at Shalimar Bagh , Delhi. 6. Near the common factory premises (located on same plot) of Jovex International and Tallman Industries, at Wazirpur Indust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d (also located on same plot), the CPU of which was resumed during search proceedings. 8. In the search at the premises of Zever Marketing Private Limited office premises at Netaji Subash Place, Delhi (ZMPL for short) Mr. Ankit Valecha was present, informed the officers that he was the partner of Jovex and engaged in the manufacture of cosmetics under the brand name Zever and Jovex . He also informed that Zever M.R. Ltd. was basically a marketing company and trading in cosmetic goods of brands Zever , Jovex, Chinar, Darling Lyko, Action, etc. It was further stated that Zever and Jovex brands where manufactured by Jovex International, Chinar and Darling brands were manufactured by dux-Naturals, located at Shimla( HP) and Lyko and Action brand was manufactured by Hindustan Perfumers. The officers also resumed certain documents and 5 hard disk drives, installed in the computer. 9. In the search at godown premises of Asquire Trading Company, Sadar Bazar, Delhi on 3 October 2011, it was found that the part of said premises were used for storing the goods of Asquire Trading Company etc, as well as for manufacturing shaving cream, cosmetic, etc, of Hindustan Perfumers. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ginal was passed and duty and penalty were imposed as mentioned herein above in para 2. Being aggrieved the appellants are before this Tribunal. 13. The Ld. Counsel for the appellant Jovex International has also file d written submission, and inter alia submits as follows:- i. That the whole case of Revenue is made on the basis of loose slips or Kacchi parchi which were recovered from the residential premises of Mr. Sunil Valecha, Director of Zever Marketing Pvt. Ltd., Mr. Sunil Valecha in his statement recorded had claimed that the said loose slips were the sales affected by Zever Marketing Pvt. Ltd. The Ld. Counsel states that without any basis, Revenue has presumed the sales mentioned on those loose slips to be goods received from the appellants Jovex International and Hindustan Perfumers. Further based on the statement of Mr. Ankit Valecha that they normally sell the goods at about 30-35 per cent of the MRP, the value of goods mentioned on the loose slips were multiplied by 3 times for ascertaining the MRP, and accordingly the duty was alleged to have been evaded. Relating to the financial year 2010-2011. This is wholly erroneous and misconceived on the part of the Ld. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant Jovex International and the driver of the temp, Rashid Khan stated to have been informed the officers that the goods were sold from Jovex International. vi. The allegation of Revenue is presumptive as it have ignored the fact that at the said premises B-72/1, there are three offices/Godowns or works namely (i) Jovex International, (ii) ZMPL and (iii) Talman Industries. Thus, although the goods on the tempo were loaded from godown of ZMPL, the driver- Rashid, erroneously mentioned the name of Jovex International. vii. That duty calculation chart- Annexure-1, (page 172 of Paper Book) is completely imaginary and in this chart, MRP has been multiplied by almost 300% so as to raise frivolous and baseless demand. While preparing Annexure-I, value of each of the invoices had not been taken into consideration an sale value (as per Balance Sheet) has been multiplied by across the board by almost 300%. Hence, demand is completely imaginary, perverse, baseless and legally untenable. The demand on Annexure-II, is on the basis of Kacha Parchis is wholly baseless. 14. Further the findings of Ld. Commissioner are factually wrong as- i) He has treated the loose/kacchi slips reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudication proceedings. Thus, the basis of demand is presumptive, as such, fit to be set aside. 17. The counsel for the parties have relied upon the following judgments- a. Sakeen Alloys (P) Ltd. V/s CCE 2013 (296) ELT 392 (Tri.) b. Radha Mahadev Corporation V/s CCE Manu/C-5/0325/2012 c. Continental Cement Co. V/s Union of India Manu/UP/1995/2014. 18. Opposing the appeals, the Ld. DR relies on the findings in the impugned order. He further urges that appellant- manufacturers have not maintained proper records of inputs and finished goods. No stock verification could be done in absence of stock-register. Cash of ₹ 14.10 lakhs was found during search at residence of Director of ZMPL. On query the director-Sunil Valecha had stated at the time of search, that the cash is the sale proceeds of ZMPL. Mr. Ankit Valecha had stated that J.I. clears almost all goods manufactured to ZMPL challan. Some of the challans were not backed by invoices. The driver of tempo-Rashid Khan had stated that no invoice was given for the goods found loaded on temp-goods were also delivered on kachha bills. He further stated that at the time of search Mr. Sunil Valecha had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rchi/loose slips, recovered from ZMPL. On perusal of the show cause notice, including the list of RUD, we find that such loose slips have not been made RUD. During the course of hearing on 11th June, 2018 this tribunal had directed Revenue to furnish the basis of calculation of MRP, for the demand raised as at one place MRP value is shown at ₹ 21,98,306.10 whereas at another place it is shown at ₹ 62,80,874. Further whether the said Kacchi parchi/loose slips were supplied to the appellant by way of RUD. In reply thereto vide a letter dated 5 July 2018 by the Deputy Commissioner (AE) GST, Delhi North, being letter No. IV/HQRS.PR EV/15/31/2011/544, addressed to the Deputy Commissioner AR of this Tribunal, it is stated that as per the statement of Mr Ankit Valecha, JI cleared their goods to ZMPL at about 30 to 35% of MRP printed on the box/container. This was verified from the MRP printed on the samples of the goods drawn with the punchnama dated 3 October 2011. The MRP mentioned on the samples drawn was correlated with the sale price mentioned on the invoices raised by JI to ZMPL. From this it was noticed that JI had sold the goods on 30 to 35% of MRP in the year 2011 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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