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TMI Blog2020 (1) TMI 317X X X X Extracts X X X X X X X X Extracts X X X X ..... period from March 2004 to February 2006 (up to 14.02.2006) . We find that other than M/s Gasha Steels only two other parties like M/s Scot Free Steel Ltd. and M/s Lal Steel Ltd. have been mentioned in the SCN. No name of any other purchaser is ever whispered. Learned Commissioner has concluded that M/s Gasha Steels have clandestinely removed 2112.154 MT of CTD/TMT bars and 44.0032 MT of scrap cleared without payment of duty. We find that if the learned Commissioner finds that M/s Geisha Steels have only received about 2406.52 MT of MS Ingots form the appellants, as against the alleged removal of 15898.175 MT of MS Ingots by the appellants to M/s Gasha Steels, he cannot confirm duty on the alleged removal of 16274.565 MT of MS Ingots totally by the appellants. Commissioner finds that out of alleged 15, 898.175 MT of Ingots, only 2406.52 MT of MS Ingots are proved to have been removed by the appellants to M/s Gasha Steels - If the clandestine receipt by M/s Gasha Steel is not established, logical conclusion is that clandestine clearance by the appellants is not also established to that extent. The inconsistency becomes more glaring when we note that both the orders are passed on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the documents relate to unaccounted procurement of scrap, manufacture of ingots and clearance of the same. Statements of Shri Mamu Paloli, Administrative Manager and Shri Shanavas, Production supervisor were recorded. (i). In a follow up action premises of M/s Gasha Steels Pvt Ltd were also searched; it was found that there were several clearances of CTD Bars/scrap on parallel invoices; there was an excess of 78.080 MT of MS ingots and 12.500 MT of Bars/Rods; Shri P.A. Amanulla, director of M/s Gasha Steels accepted unaccounted receipt of ingots from the appellants. They paid 50, 00,000 towards duty liability. (ii). Premises of M/s Scot free Steels Ltd was also visited and 11.21 MT of ingots were found in excess; Shri Mohammed Mustafa, Director of M/s Scot free Steels Ltd, though initially could not explain the difference and blamed it on weighment difference, in his statement dated 27.4.2006 accepted that during January and February 2006, they received 300 MT of unaccounted ingots from the appellants. They paid 8, 20,000 towards duty liability. (iii). Premises of M/s Lal steels Pvt Ltd were visited on 27.4.2006 and excess quantity of 7.735 MT of ingots was found; Shri Bh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asha Steels Pvt. Ltd. which came to be adjudicated by the same Commissioner vide OIO No. 11/2009 dated 12.05.2009. Learned Counsel submits that the following are common to both the SCNs: (i) Documents seized from the premises of the appellants on 14.05.2006 and the averment that most of the clearance of MS Ingots were affected to M/s Gasha Steels Pvt. Ltd. up to December, 2005. (ii) Sh. P.A. Amanulla, Director of M/s Gasha Steels in his statement dated 15.02.2006 stated that purchase of Ingots from the appellants was made without any documents in cash. (iii) Statement of Sh. Yosuph Mekkaoth, Director of appellants states that entire sales were to M/s Gasha Steels Pvt. Ltd. (iv) Sh. K.Anandan, Accounts Manager of appellants in his statement dated 21.02.2006 said that more than 90% of the sales were made to M/s Gasha Steels. (v) Sh. Jai Prakash and Sh. Manikandan, Drivers in their statements dated 24.02.2006 stated that Ingots were mainly transported to M/s Gasha Steels in three trucks. This was also stated by Sh. Shanavas, Production Supervisor of appellants. 4. Learned Counsel further submits that the following are common to the case of the appellants decided vide OIO No. 12/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parallel invoices raised by M/s MS Steels (appellants) to M/s Gasha Steels which contained the required date, invoice number, quantity etc. can be relied as a valid tangible piece of evidence to sustain the allegations to a reasonable level that around 2374.4 MT of Ingots were received by M/s Gasha Steels for conversion. 5. Learned Counsel submits that the inconsistency in the orders passed by same authority points out to the fact that the evidence available therein is not enough to sustain the allegation of evasion of duty against the appellants. He relies upon Castrol India Ltd., 2015 (323) ELT 726 (Madras). He submits that as the Department has not appealed against the order of Learned Commissioner in respect of M/s Gasha Steels, it was not correct to confirm the demand against the appellants on the same set of evidence. He relies upon P&B Laboratories Ltd., 2015 (319) ELT 553 (SC). Relying on Joy Vs Regional Transport Authority, 1999 (105) ELT 275 (Ker.) and Changzhou Yongfa Corduroy Co. Ltd., 2011 (269) ELT 218 (Kar.), he submits that inconsistency cannot be accepted. He further submits that as the Commissioner held that demand against M/s Gasha Steels is not maintainable, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) ELT 543 (Tri. Ahmd.) * Prakash Industries Ltd. Vs CCE, Raipur, 2017 (358) ELT 1149 (Tri. Del.) * CCE, Trichy Vs Anjaneya Steel Rolling Mills, 2005 (185) ELT 158 (Tri. Chennai) * Ahmednagar Rolling Mills Pvt. Ltd. Vs CCE, Aurangabad, 2014 (300) ELT 119 (Tri. Mumbai) * Sri Rama Machinery Corporation Ltd. Vs CCE, Chennai-I, 2017 (348) ELT 540 (Tri. Chennai) * CCE, Raipur Vs Steels Abrasives, 2017 (357) ELT 678 (Tri. Del.) * Gulabchand Silk Mills Pvt. Ltd. Vs CCE, Hyderabad-II, 2005 (184) ELT 263 (Tri. Bang.) * Somani Iron & Steels Ltd. Vs CESTAT, 2011 (270) ELT 189 (All.) * R.S. Company Vs CCE, 20174 (351) ELT 264 (M.P.) * Collector of Customs Vs D.Bhoormull, 1983 (13) ELT 1546 (SC) 7. Learned Counsel for the appellants vide written reply dated 18.12.2019 rebuts the written submissions of the Learned AR and states that the submissions of Learned AR are irrelevant as the two cases are not independent to be decided separately on the basis of evidence available therein. The allegations in both the SCNs are based on same set of evidences unearthed in the same investigation. The allegation in one SCN is negated in another order and therefore, the submissions on this c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l probability 15898.175 MT of MS Ingots were removed from M/s MA Steels Pvt. Ltd. during the period March 2004 to February 2006 (up to 14.02.2006), as mentioned supra. However, I find that other than the statements of certain individuals, the documents/evidences on which the quantification has been carried out do not, barring some instances, have any clear indication that the goods were specifically cleared to M/s Gasha Steels Pvt. Ltd. The only tangible evidence of clearances made to M/s Gasha Steels Pvt. Ltd. from M/s MA Steels Pvt. Ltd. are the 150 Nos. of duplicate invoices recovered from M/s MA Steels, as per which, it is seen that during the period from 16.01.2002 to 14.02.2006, they have removed 2406.52 MT of MS Ingots to M/s Gasha Steels Pvt. Ltd. On subtracting the removals made prior to March 2004, the quantity cleared during the period 25.06.2004 to 14.06.2006 works out to 2278.24 MT. The previously discussed quantity of 649.880 MT of CTD Bars and 63.220 MT of Scrap found to be cleared by the noticee under the 102 Nos. of parallel invoices, during the short period from 01.07.2004 to 08.07.2004, were evidently manufactured/generated out of this lot of non-duty paid MS Ing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were made in cash. They have also deposited amounts towards the duty liability. On the other hand evidence of purchase of scrap, production of ingots and sale clandestinely by the appellants has been accepted by the persons in charge and persons managing the affairs of the appellant. We find that the commissioner has given elaborate findings on the purchase of scrap, production and sale of ingots in an un-accounted manner. The clearances to these units and other units have not been separately quantified. It has been proved that goods are manufactured. MS Ingots would not evaporate in thin air. Appellants have to discharge the duty on the same. As held in plethora of cases, we find that the activities of this nature will not be documented well for obvious reasons and as far as possible any trail of evidence would be destroyed. Such cases cannot be proved by arithmetical precision. We find that the investigation has reasonably established all the ingredients required for establishing clandestine removal. Consequentially, we hold that duty evasion by the appellants shall have to be restricted to 2406.52 MT + 376.39 MT (16274.565 MT-15,898.175 alleged to have been removed to other uni ..... X X X X Extracts X X X X X X X X Extracts X X X X
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