9911796707
TMI Blog2019 (7) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany. 3. M/s. Vee Kay Iron & Steel Traders (in short traders) was engaged in sale/purchase of alloy and non alloy steel rounds/bars etc. under the proprietorship of Shri M.K.Gupta, father of Shri Atul Gupta, Director of M/s. Vee Kay. 4. M/s. Waryam Steel Casting Pvt. Limited (in short M/s. Waryam) is engaged in the manufacture of MS/LC/En8D ingots. The authorized signatory of this company is Shri Atul Gupta. Based on some intelligence, two premises of traders well as M/s. Waryam were searched on 22.3.3005. During the course of investigation, the officers seized various records/documents including one laptop Sl.No.CNF 35112KDP Compacq n x 9010, belonging to Shri Atul Gupta and one CPU No.P116BX3Z0747, belong to the traders. Printouts were taken from the computer/laptop and seized. On the basis of these printouts, it was revealed that M/s. Vee Kay had clandestinely procured large quantities of raw materials/inputs, which had been subsequently been used in the clandestine manufacture and sale of finished goods without payment of duty. It was also revealed that M/s. Vee Kay had procured 12342.44 MT of ingots clandestinely from various manufactures/suppliers including M/s.Waryam and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... outs and to allow the cross examination. In remand proceedings, the adjudicating authority has passed the following order:- (i) Demanding duty of Rs. 4,93,012/- from M/s. Vee Kay along with interest (ii) Imposing equivalent penalty of Rs. 4,93,50,012 on M/s. Vee Kay (iii) Demanding duty of Rs. 2,27,74,215/- from M/s. WSCPL along with interest (iv) Imposing equivalent penalty on M/s. Waryam. (v) Imposing a penalty of Rs. 4,93,50,012/- on M/s. Vee Kay Iron & Steels Traders (VKSIT) under Rule 26 of Central Excise Rules, 2002, read with section 11AC of the Central Excise Act, 1944. (vi) Imposing a penalty of Rs. 4,93,50,012/- on Shri Atul Gupta, Director of the appellant company and authorized signatory of M/s. Waryam, under Rule 25 of the Central Excise, 2001 read with Section 11AC of the Central Excise Act, 1944. (vii) Imposing a penalty of Rs. 4,93,50,012/- on Shri M.K.Gupta, proprietor of M/s.Vee Kay Iron & Steel Co.Ltd., under Rule2 5 of the Central Excise, 2001 read with Section 11AC of the Central Excise Act, 1944. Against the said order, the appellants are before us. 5. Ld. Counsel appearing for the appellant submits that the adjudicating authority has not follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e d that he had not signed on any invoices by the traders. The department has controveted this by relying on the statement dt.16.8.2005 of Shri M.K.Gupta. However, neither did the department identify any sale bill of trader carrying the signature of Shri Atul Gupta nor was any such signature certified by any handwriting expert as being those of Shri Atul Gupta. 9. He further submits 16 manufacturers of ingots, who were supplying raw materials to the appellants were identified by the department from the printouts. Out of 14 could be contacted and their statements recorded. 11 of them confirmed supply of ingots on payment of duty as recorded in the books of M/s. Vee Kay and denied having supply any raw materials other than these and which were reflected in computer printouts and remaining three denied having supplied any raw materials to the M/s.Vee Kay. 10. He further submits that the adjudicating authority has held that the veracity of the printouts cannot be challenged since a number of manufacturers of ingots had accepted the demand raised on them on the basis of the printouts. It is submitted that the payment were made by five such companies to avoid harassment and not as an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tinely procured raw materials or clandestinely cleared finished goods; (iv) Discrepancy in stock of raw materials as well as finished goods with respect to recorded balance; (v) Identifying the cash trail or seizing any amount of cash as the whole transaction of unaccounted raw materials and finished goods would involve cash of over Rs. 50 crores. (vi) Excess consumption of electricity (vii) Determining the production/installed capacity of the unit; (viii) Inculpatory statements from employees or Directors of the company No evidence is available to allege clandestine removal of the goods. 13. In the impugned order, the adjudicating authority has held that the trader was a dummy unit, no evidence has been produced about any money flow back from the trader to M/s. Vee Kay or of management control or of profit sharing or that the trader exists only on paper. On the contrary there is ample evidence of sale and purchase of goods by the trader, who were also regularly filling VAT returns and were aloes filing income tax returns. 14. With regard to the demand of duty confirmed against M/s. Waryam, two final orders passed in respect of A.K.Alloys Ltd. And M/s. Malerkotla Steel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The conditions referred to in sub-section (1) in respect of a computer print out shall be the following, namely :- (a) the computer print out containing the statement was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; (b) during the said period, there was regularly supplied to the computer in the ordinary course of the said activities, information of the kind contained in the statement or of the kind from which the information so contained is derived; (c) throughout the material part of the said period, the computer was operating properly or, if not, then any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of the contents; and (d) the information contained in the statement reproduced or is derived from information supplied to the computer in the ordinary course of the said activities. (3) Where over any period, the function of storing or pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat computer, shall be taken to be supplied to it in the course of those activities; (c) a document shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. Explanation. - For the purposes of this section, - (a) "computer" means any device that receives, stores and processes data, applying stipulated processes to the information and supplying results of these processes; and (b) any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process." 18. How printout is admissible has been examined by this Tribunal in the case of Agarvanshi Aluminum Limited vs. CC, Nahvasheva (299) ELT 83 (Tri.-Mum.), wherein this Tribunal has observed as under:- "12. From the above provisions, it is clear that for admissibility of computer printout there are certain conditions have been imposed in the said section. Admittedly condition 4C of the said section has not been complied with and in the case of Premier Instruments & Controls (supra) this Tribunal relied on the case of Internat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l and this Tribunal after considering the evidence placed on record observed as under: "5. Heard the parties and considered the submissions. I find that the charge of clandestine removal has been alleged against the appellant on the basis of record retrieved from the computer seized from Shri Atul Gupta, Director of M/s. Vee Kay Concast Private Limited. There is no other evidence available on record to show that the appellant was engaged in the activity of clandestine removal of the goods. No corroboration of evidence has been made by the Revenue to substantiate the allegation of clandestine removal. Moreover, no statement of transporter is recorded and no mode of payment is determined by the Revenue while investigating the case. All the more, during course of investigation, nothing adverse was found against the appellant and the appellant has made a categorical statement that they have not supplied any goods without cover of invoice. In that circumstances, without any positive evidence of clandestine removal of goods, the charge of clandestine removal against the appellant is not sustainable. In that circumstance, the impugned order has no merit and the same is set aside. Conseq ..... X X X X Extracts X X X X X X X X Extracts X X X X
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