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TMI Blog2019 (4) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... 493 of 2016[DB] - Final Order No: 50508-50510/2019 - Dated:- 10-4-2019 - Shri Anil Choudhary, Member (Judicial) And Shri Bijay Kumar, Member (Technical) Shri A K Prasad, Advocate for the appellant Shri R K Mishra, Authorized Representative for the respondent ORDER Per Bijay Kumar 1. These appeals arises out of common order passed by the Principal Commissioner of Central Excise and Service Tax, Indore vide which he has confirmed the demand raised against the appellant in terms of Show Cause Notices issued under F. No. DGCEI/AZU/36/85/13-14 dated 02/08/2013. 2. The fact of the case, in brief are that the appellant [M/s Dee Tee industries Ltd. (Unit No. 2)] is engaged in manufacture of Cold Rolling Mills Rolls, Sheer Blade and Sheet Metal components classifiable under Chapter heading 8484 and 82081 of Central Excise Tariff Act, 1985. They are registered with the Central Excise Department and also availing Cenvat Credit on inputs in terms of Cenvat Credit Rules, 2004, (herein after referred as Credit Rules) other two appellants, namely, Shri Aradhya Baheti, is Executive Director of the appellant company and Shri P G Purohit, is President of the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,502/- in respect of sales made to the Ahmedabad manufactures. It is contended that the appellants have accepted the under valuation in respect of a few sales after allowing cum duty benefit the duty will come to the extent of ₹ 6,61,273/-. In the remaining cases due to lack of evidence against them the demand in respect of excise duty from Ahmedabad buyers is not sustainable. The Department has extrapolated the data of few cases of Ahmedabad buyers and applied the same to the entire sale. The document recovered from the consignment agent, Shri Ghanshyan Suraj Bhatra, shows the details of under valuation in respect of only seven buyers, which is not contested by the appellant. For others the Department failed to carry out investigations regarding the excess recovery over and above the invoice value, in cash. Therefore, the conclusion made by the Adjudicating Authority is not sustainable. The reliance was also placed on the CBEC Circular No. 975/9/2013-CX dated 25.11.2013 which stated that every transaction is to be assessed independently under the provisions of Section 4 of the Central Excise Act, 1944 (for short Central Excise Act ) (iii) Ld. Advocate further submits tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learance of goods at higher price than shown in invoices, on which the excise duty was paid. It is also accepted by the various persons, namely, executive Director, President, Sr. Marketing Manager at the instruction of appellant No. 2 and 3 the consignment agent were recovering excess amount in cash through their respective buyers at Jodhpur. 8. In view of above, we are of the opinion that the adjudicating Authority has rightly denied the cum duty benefit in these cases placing reliance on the decision of Hon ble Cestat in the following cases; 39. With regard to the assessee s plea that benefit of cum tax should be accorded to them, in this regard, I find that the assessee had collected the 50 % amount in cash and did not pay duty due on the cash collected off the record, over and above the invoice value and goods were undervalued on record. In my view this is not a fit case for extending cum tax benefit on such amount. In this regard, I place reliance on the following case laws; (a) The hon ble CESTAT in case of JAY JALARAM PROCESSORS versus COMMISSIONER OF CENTRAL EXCISE, SURAT, 2014 (313) ELT 724 (T) held that:- 7. It has to be kept in mind that the clearance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y was payable nor was being recovered form them. It goes without saying that the cash consideration received by the Noticee No 1 from his customers were without including the element of duty. I am, therefore, convinced that cum duty concept would not apply here, and therefore, the question of re-quantifying the demand is ruled out. 9. Regarding the duty quantified in respect of clearance affected by the appellant to their Ahmedabad customer, it is seen that the Department has conducted investigations in respect of only seven cases which has been accepted by the appellant. But in the remaining cases no investigations have been conducted by the Department. From the impugned order, we find that the Ld. Adjudicating Authority has dealt with this issue at length in his order and held that the appellant had engaged in clearance of their final product by resorting to undervaluation in respect of seven clearances which is not disputed by the appellant. It is the contention of the appellant that they have only resorted to undervaluation of sale to the unorganized sector. But for the organised sector, they have not resorted to undervaluation of their product and cleared the goods at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per his convenicen. It is also observed that although Shri Bhanwar Bhai was not known to Shri Bhutra, but due diligence was given while handling over the cash to him by getting in tough with Shri Rajesh Dueby over phone. Several entries made in the account of Shri Bhutra were also confirmed by Shri Bhutra himself that he has received additional amounts in cash over and above the invoice value. It would, therefore, be incorrect to say that the undervaluation was resorted to only in few cases and no evidence was forthcoming from the Department. In this regard, I place reliance on the following case of the Hon ble Supreme Court in case of Collector of Customs, Madras and Others vs. D Bhoormull Civil Appeal No. 1142 of 1973 decided on 03/04/1974 wherein it was held that: This is a fundamental rule relating to proof in all criminal or quasi-criminal proceedings, where there is no statutory provision to the contrary. But in appreciating its scope and the nature onus cast by it, we must pay due regard to other kindred principles, no less fundamental, or universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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