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TMI Blog2020 (1) TMI 802X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tax Appeals under Section 260A of the Income Act, 1961 (for short the Act ) at the instance of Revenue and are directed against the common impugned Order No. A/1012010125/ 2019 dated 18.01.2019 passed by the Customs, Excise Service Tax Appellate Tribunal, Western Zonal Bench, Ahmedabad in Appeal Nos. E/10151/2018, E/11436/2018 and E/11433/2018. 3. As the Tribunal has passed the common order in case of the the appellant-Company and its two Directors, all three appeals are disposed of by this common order. 4. The following substantial questions of law are proposed by the Revenue: 2(a) Whether in the facts and circumstances of the case, the Hon ble Custom, Central Excise and Service Tax Appellate Tribunal, Western Zonal Bench, Ahmedabad has committed an error in giving perverse findings on facts which are without any evidence and contrary to the material evidences available on record? (b) Whether in the facts and circumstances of the case, the Hon ble Custom, Central Excise and Service Tax Appellate Tribunal, Western Zonal Bench, Ahmedabad has erred in allowing the Appeal merely on the basis of submissions made by the assessee that too ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by M/s. SFL and one key of locker of Shri Ramesh M shah in Venilal Safety Vaults Pvt. Ltd. were recovered. Further search of lockers in possession of Shri Ramesh M Shah resulted in recovery of 11 bundles of loose incriminating documents and three Pen Drives. It was found that these lockers were maintained by Shri Ramesh M Shah under fictitious names namely R.M. Jani R.M. PateL because while opening of the locker by the key, retrieved from Ice Cream Stall, Shri Ramesh M Shah made the formalities like signature etc. as being owner of the locker. Data retrieved from these Pen Drives were in the form of computerized ledgers, consisting of main ledgers such as purchase and sale of S.S.C.R. Coils, details of payment received and made vide cheque and cash, capital of directors of M/s. SFL, Profit and Loss Account and Balance Sheet etc. and relevant party ledgers pertaining to the period from April 2009 to March 2012. 6.2 During investigation, the details contained in these handwritten Gujarati Sheets were compared with the details/data retrieved from seized Pen Drives and it was observed that the details such as date of transaction, name of party, quantity of the goods, In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ash) maintained year-wise. (iii) Ledger account namely Bill Condition maintained by them reflected issuing of only invoices without sale of the goods to the various parties situated in and around Mumbai. (iv) Ledger account namely Direct Purchase (Value Diff) Direct Sale (Value Diff) maintained by M/s. SFL reflected the under valuation of final goods by them thereby paid less amount of Central Excise duty. 6.4 From the foregoing, it emerged that M/s Shah Foils Ltd. Santej, Ta:Kalol, Dist:Gandhinagar, Gujarat had: (i) suppressed their production of final goods S.S.C.R. Coils in their books of account and cleared the said unaccounted S.S.C.R Coils (as detailed in their Ledeger Account Bombay Sales ) without the cover of valid documents/invoices and without payment of central excise duty due thereon and thereby evaded payment of central excise duty amount to ₹ 13,22,68,484/during the period from April 2009 to 10.01.2012. (ii) suppressed their production of final S.S.C.R. Coils in their books of account and cleared the said unaccounted S.S.C.R Coils (as detailed in their Ledger Account Smi (Cash) ) without cover of v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Director of M/s. SFL and was being kept secret in the form of Physical Sheets and also in the form of data stored in Pen Drives in lockers taken by him fictitious names in VENILAL SAFETY VAULTS PVT.LTDL at Bhuleshwar, Mumbai. The physical records i.e. handwritten Gujarati Sheet were maintained by Shri Ramesh Shah in his own handwriting, which find mention of clandestine removals of excisable goods without cover of Excise Invoice and without payment of duty of excise, along with removals of goods by M/s. SFL on payment of duty of excise. Further the records of current clandestine removals were being kept by him at the premises of Lottery/Ice Cream Stall of Shri Manoj Tanna situated opposite Sunrise Building (Office of M/s. SFL), C.P.Tank Road, Mumbai 400004. The keys of the lockers were kept with Manoj Tanna only to avoid detection. Moreover, the handwritten Gujarati Sheets were maintained by him by placing decimal after one digit from right of an amount of artificially reduce the data by 1/10th, adopting illicit tactics to deceive the government exchequer. Thus, his intention was quite obviously, not to pay legitimate of excise, by manipulating the business of statutory records/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able. 7. With regard to sole evidence which has been relied upon by the Department is only pen driver data and statement of brokers which were even self contradictory, the Tribunal has held that: Though the statement of directors has also been relied upon by the department, but we found that even in some statements they have stated that the data found in pen drive do not belong to M/s SFL and it belongs to M/s Sankalp. Inspite of fact that some of the statements were recorded in presence of Snehil R shah who is director of M/s Sankalp, but even then he was not questioned about such data. At least the officers could have recorded his statement to ascertain the truth. Even if the statements of director are considered inculpatory the same cannot be relied upon in absence of corroboration with material evidence as held in case of Tejwal Dyestuff Ind. Vs. 2007 (216) ELT 310 (TRI) and 2009 (234) ELT 242 (GUJ.). Thus the statement of directors cannot lead to inference that the goods stated in Bombay Sales ledgers are of Appellant. We also find that the brokers have even stated that they have taken the goods from Vasai Godown of M/s SFPL. In s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xamination of Shri Ashwani Kapoor, Inspector on 3rd August, 2006 explaining that wastage on each stage of production have not been considered by the Adjudicating Authority. Moreover, the Knitwear Club, Ludhiana which is an independent body have also stated in their letter dated 19 May, 2005 that in normal course, there is a wastage of around 40% same has also not been considered by the Adjudicating Authority but without bringing any corroborative evidence apart from statement of Shri Baldev Singh demand has been confirmed. 8. With regard to onus to prove clandestine clearances by sufficient cogent, umimpleachable evidence, the Tribunal has held that: 20. We also find that the onus to prove clandestine clearances has to be discharged by sufficient cogent, unimpeachable evidence as held in case of CCE VS Laxmi Engg. Works 2010 (254) ELT 205 ) P H), Shingar Lamps Pvt. Ltd., Vs CCE 2002 (150) ELT 290 (T), CCE Vs Shingar Lamps Pvt. Ltd. 2010 (255) ELT 221 (P H), Ruby Chlorates (P) Ltd., Vs CCE 2006 (204) ELT 607 (T), CCE Vs Gopi Synthetics Pvt. Ltd. 2014 (302) ELT 435 (T), CCE Vs Gopi Synthetics Pvt. Ltd., 2014 (310) ELT 299 (Guj), Aum Aluminium Pvt. Ltd. Vs C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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