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TMI Blog2019 (8) TMI 872X X X X Extracts X X X X X X X X Extracts X X X X ..... t one example to show that learned Commissioner has been meticulous in scrutiny of the documents and arriving at the quantity alleged to have been removed clandestinely. Slips maintained by a specific person performing a specific duty for which he is paid cannot be brushed aside simply for the reason they are not singed/authenticated. These are not like the scribblings of a school kid who notes down something whenever he is not interested in the class. Therefore, we find that they have evidentiary value as long as they are recovered from the persons/premises of the appellants or from the persons/premises with whom they have transaction. We find that learned Commissioner has rightly held that it is sufficient to prove that the default in compliance has occurred; no evader of tax leaves all evidences to prove his guilt and that there are ample evidences to prove the malfeasance of the assessee. Retraction of statements - HELD THAT:- The retraction of the statement by Shri. Latheef at a later date has no relevance. Similarly, as the evidences albeit in bits and pieces corroborate the clandestine removals of the appellants, we find that non-recording of statements of Shri. Muthu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,63,97,284/- plus ₹ 3,47,581/- as CESS while seeking to impose penalty on Shri. K. Noor Mohammed Noor Shah, Managing Director and Shri. K. Abdul Gafoor, Executive Director of the appellants. A show-cause notice was decided by the Commissioner vide impugned order No.3/2008 dated 19.8.2008 vide which he has confirmed a duty of ₹ 1,98,71,454/- along with interest and equal penalty. Penalty of ₹ 10 lakh each was imposed on the Managing Director and Executive Director. Hence, these appeals i.e. E/860/2008 by the appellant, E/861/2008 by the Managing Director and E/862/2008 by the Executive Director. The department has filed an appeal E/932/2008 on the portion of the order dropping certain demand for the period 1/04/2003 to 09/08/2003. The department has also filed Cross-Objections on the appeals filed by the appellants. All of them are taken together for decision. 2. Learned counsel for the appellant submits that the main case of the department is based on assumptions and presumptions and not corroborated with evidences; entire demand has been created on the basis of loose slips and scribbling pads recovered from the premises of the appellants; the vera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sumption varies on the thickness, quality of raw materials and other factors. (iv) Bundling of MS TOR and MS angles by Shri. Muthu is much higher than production recorded: No statement of Shri. Muthu was recorded. Statements of dealers, transporters and other contractors do not indicate clandestine clearances; the document titled Muthu seems to have signed by Shri. Sagidas. However, his statement was not recorded. The document has been charged by the appellant. (v) The words AC and Non-AC indicate non-accounted clearance: the version of the department is on the basis of the document titled Muthu . However, no statement of Shri. Muthu was recorded; fact that Shri. Muthu worked for other companies also was not taken into account. (vi) Payments made to Shri. Garudayya: No signature of the said Shri. Garudayya appears on the sheet. No statement of Shri. Garudayya recorded. (vii) Notebook showing actual twisted quantity of TOR: The contents of the notebook were not corroborated by any statements. (viii) Document dated 21.7.2003 showing various items despatched, only two items match with production registe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntity is 2211.965 MT including 257.820 MT converted or produced for others. Overall the total quantity accounted for the period August to September 2004 is 5575.300 MT and not 2381.700 MT as recorded by the Commissioner. In case the demand is upheld the same needs to be reduced to that extent. 2.3. Learned counsel for the appellant further submitted that the learned Commissioner has dropped substantial portion of the demand on the ground that the demand was based on the slips which were not signed by the employees whereas some portion of the demand was confirmed on the same set of evidence. He also submits that when the demand itself is not sustainable, interest and penalty are not sustainable. 3. The learned AR for the department submits that the confirmation of duty was confined to 6105.575 MT on documentary evidence whereas the demanded quantity was 12568.495 MT. The demand was confirmed only for the period November 2000 to March 2003 and August 2004 to September 2004 where the incriminating documents recovered by the investigating agency were corroborated with other supportive evidence; Shri. Abdul Gafoor, Executive Director in his statement date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are corroborated by the entries in the notebook submitted by Shri. Latheef employee/contractor of the appellants; as the same is corroborated recording of statements of some persons is not material to the investigation of the case. 4.1. We find that the entire case is made on evidence contained in the slips/documents recovered from the appellant or the third parties. We find that learned Commissioner has given detailed findings on going through the File No. 61 and 62 (notebook). The findings of the Commissioner are contained in paras 45 to 74 of the impugned order. We find that learned Commissioner has analysed the evidence available to come to the conclusion on the quantity of evasion alleged to have been made by the appellants. We find that the learned Commissioner had been fair enough in evaluating the evidence inasmuch as he has himself dropped demand pertaining to the period April 2003 to August 2003. In the instant period, the Commissioner did not rely upon page No. 16 to 25 of the notebook as the same are not serially numbered and did not contain the signature of the persons who maintained the same. Learned Commissioner however confirmed the demand for the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appellants, we find that non-recording of statements of Shri. Muthu or Shri. Sagidas does not vitiate the proceedings. As these are employees/contractors of the appellants their cross-examination would have not served any further purpose as there is every chance that they may be tutored at a later date by their employer. As there was sufficient evidence as discussed by the Commissioner, the above infirmities do not come in a way of the conclusions drawn. 4.4. The appellants contended that normally records are written on the next day and only because the records are not updated, clandestine removal cannot be alleged. We find that the appellants were visited by the officers on 23.09.2004; the production register was only maintained up to 19.09.2004. Therefore, we do not find merit in the appellant s contention that recording of production may sometimes be postponed to next day. It is not the case of the appellant that the production records are updated up to 21/22.09.2004. The appellants also contended that the production capacity and electric consumption depends on various factors and clandestine removal cannot be alleged only on the basis of production capac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as they are recovered from the persons/premises of the appellants or from the persons/premises with whom they have transaction. We find that learned Commissioner has rightly held that it is sufficient to prove that the default in compliance has occurred; no evader of tax leaves all evidences to prove his guilt and that there are ample evidences to prove the malfeasance of the assessee. 4.6. The appellants also contended that their issue is time-barred. We find that as observed by the learned Commissioner, the duty evasion resorted to by the appellants could only be unearthed after investigation of DGCEI. Therefore, extended period in terms of proviso to Section 11A is attracted. We are in complete agreement with the Commissioner. 4.7. Learned Commissioner has imposed penalty on Shri. Noor Mohammed Noor Shah, Managing Director and K. Abdul Gafoor, Executive Director. As we hold that charge of clandestine removal is established, the persons at the helm of the affairs of the appellant have by acts of commission and omission have rendered themselves to penalty under Rule 26 of Central Excise Rules, 2004. We find that learned Commissioner has correctly re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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