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TMI Blog2020 (2) TMI 1015X X X X Extracts X X X X X X X X Extracts X X X X ..... rtation of raw material, finished goods and trading material - HELD THAT:- There is intermixing of business activities of the units and same is being controlled by Shri Ashish Gupta, on behalf of other appellant as well. Regarding the evidences which was collected from the computer of the appellants it is on record that the same was being used by various persons and was not in the control of any individual person. No certificate has required under 36 B of Excise Act is available on record, and therefore, it is concluded that same has not been obtained by the Department during the course of investigation. Therefore, reliance cannot be placed on data derived from this computer/ hard disk. But, Shri Ashish Gupta as categorically accepted these clearances in his statement and also paid Central Excise duty voluntarily. It is evident that the Department has not only relied merely upon the data derived from the computer printout but also obtained from independent sources, which has been accepted by Shri Ashish Gupta. In this regard we are also relying on some of the observations made in the adjudication order by the Adjudicating Authority regarding the huge variation in the consumption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pati Wires (Noticee No. 4) are not registered with the Central Excise Department on account of the fact that their turn over is claimed below the SSI exemption limit. The other appellants, namely, Shri Ashish Gupta (Noticee No. 5) and Smt. Sandhya Gupta (Noticee No. 6) partners and proprietors of some of these firms, on whom the penalty has been imposed under the Provisions of Central Excise Act, 1944 (for short Excise Act) and Central Excise Rules, 2002 (for short Excise Rules) for their omission and commission of provisions contained therein the Act and Rules. 3. The Central Excise officers visited the factory premises of these units on 04/03/13 and seized many incriminating documents and hard disk drives of the computers installed in the factory premises of the appellant. Searches were also carried out at the residential premises of Shri Ashish Gupta, and some documents were also resumed there. The Central Excise Officer also conducted stock taking with the premises of M/s Ganpati Steels and Ganpati Allied Works, wherein some shortages of stocks were found and demands have also been issued on this score under the provisions of Act and Rules. 4. After investigation, Departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f these units are different, although, some units have common directors/partners/proprietors, including some of the employees but that in itself would not be sufficient to hold that the other three units are dummy. The reliance was placed on the decision in case of CEE, Kanpur, vs Sharad Industries [2013 (294) ELT 561 (Tri-Del)]. (v) The vehicles in which the transport of finished goods and raw material were undertaken were being owned by Shri Anil Gupta, elder brother of Shri Ashish Gutpa (Appellant No.5). (vi) It was also submitted that the some payments, which were made by the trader, namely, Raipur Steels and Samaya Steels, there is no irregularity in such transaction as per the trading practice prevalent in the steel industries. In any case, it was clarified during the cross examination of Shri Sanjiv Gupta, Proprietor of M/s Samaya Steels and other Trading Company, namely, Raipur Steel on 13/10/17, that the transactions were genuine although in some cases the payment meant for one appellant have gone to other units accounts, which was a genuine mistake, that was corrected subsequently. (vii) It was further submitted that for clubbing of the clearance of the four ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recording of the statement. Further, the Adjudicating Authority has not followed the procedure under Section 9 D of the Central Excise Act, 1944 inasmuch as Shri Ashish Gupta was not examined in chief and hence his statement cannot be relied upon in the process of adjudication. 7. As regards to the demand of shortage at the time of stock taking, it was submitted that punchnama was drawn at the premises of M/s Ganpati Steels and one of witness was his their own employee. Hence the punchnama loses its crdential. 8. It was also alleged that shortages were arrived on the basis of eye estimation and actual weighment were not conducted by the visiting excise officer. It was also pointed out by the appellant that the shortage was on account of accumulated shortage spread over the last few years. And hence, the shortage was stated to be within the permissible tolerance limit, prevalent in the steel industries. 9. The major portion of the demand has been raised in respect of four appellant units for year 2010-11, is based on the printouts taken from hard disk of the appellant s computer, which was alleged to be maintained under the fictitious name of abc . As the provisions of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (vii) Trela Footwear Exports Pvt Ltd. vs CCE ST, Agra, Final Order No. A/70522/2018-EX(DB) dated 07.03.2018 (viii) Popular Paints Chemical vs. CCE ST, Raipur-Final Order No. A/52716-52718/2018-EX(DB) dated 06.08.2018 10. It was also submitted that Ld. Adjudicating Authority has ignored the fact that the appellants were in business of manufacturing as well as trading, of the said commodities and the two categories of sales were distinguishable on the marking on the invoices itself. The invoices of the manufactured goods were marked with letter pre-fixed MU and trading goods were marked with T or TR . The Department, despite request, made by the appellant, has not made any segregation of two types of sale for the purpose of computation of alleged demand. 11. It was also submitted that Galvanised Iron is raw material for other two units, namely, of M/s Ganpati Steels and Ganpati Allied Work units and hence separate demand in respect of GI wire is not correct otherwise even if duty is demanded in such a situation the duty paid would be available as Cenvat Credit to other units leading to the Revenue neutral situation, also when the demand itself is not sustai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red huge quantity of products that the wires and rolled products. Similarly, evidence on cash/money transaction get established vide ledger of Noticee No 1, 2, 3 and 4. In fact, record No. 10(RUD-16), Record No. 1 (RUD-8) Record No 8(RUD-9), recovered from the noticee s premises, which contained the date wise receipt of cash amount name of customer, from whom the cash is received, name of the supplier to whom cash amount have been paid for supply of raw material and subsequent deposit of cash money in the bank account. It is noteworthy that all these records were recovered from the residential premises of Shri Ashish Gupta, and all these cash entries were found to be deposited in the bank account of the appellant No. 1,2,3 and 4. The said cash amount was received and collected by Shri Gurpreet Sigh Puli, Manager against the sale of manufactured goods. In order to cover up these clandestine activities, Noticee No. 1,2,3 has fake date profile in their company by name abc company during year 2009-2010 in the name of xyz in year 2010-11 and again name abc in 2012-13. All these tally data maintained in the computer was protected under password which was under the possession of Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 5), Shri Gurupreet Singh Tuli, Manager, in his statement dated 17/05/2015, stated that Shri Ashish Gupta along with his wife and brother are Directors of the Notice No 2 in year 2012-13, although on the earlier occasion, he concealed the name of his wife Smt. Sandhya Gupta as director of the appellant noticee. From all above, it is clear that Shri Ashish Gupta is a key person for taking the entire decision of all the appellants who deliberately concealed the income of the appellant and mislead the investigation. Regarding the cross examination it was submitted by Ld. AR that the Cross Examination were permitted by the Adjudicating Authority as per the request of the appellant on 19/09/17 and 30/10/17. During the cross examination the none of the witnesses deviated from their earlier statement and reiterated them. Therefore, the reliance placed on those statements by the investigation is perfectly legal. In view of incriminating documents and electronic evidences etc, it was concluded by the AR that the impugned order is correct and legal and require to be upheld in the appeal. (iv) Ld. AR also submitted that there are various transactions namely that of M/s Naveen Associate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finitely been complied with by the Adjudicating Authority. Therefore, the contention of the Ld. Advocate is not acceptable and the case laws relied upon by the advocate is also not relevant in the contest of present controversy. Further, we also find from the statement of Shri Sunil Gupta, Director of Noticee No. 2 that the purchase of raw material, sale of manufactured goods, transportation of other business activities are being looked after by Shri Ashish Gupta (Noticee No. 5) and also Shri Gurupreet Singh Tuli, Manager and that of Smt. Sandhya Gupta(Noticee No 6) not only that the Proprietor of Noticee No. 3 is also Director of the Noticee No. 2, her statement recorded under Section 14 of the Central Excise Act, deposed that she is although proprietor of the Noticee No. 3 but entire work is being controlled by her husband Shri Ashish Gupta (Noticee No. 5). She also agreed to the statement made by Shri Ashish Gupta and that of Shri Gurupreet Singh Tuli, Manager. Accordingly, there is evidence regarding pervasive control of these units by Shri Ashish Gupta only. We also find that the record regarding payment of the various units is interlinked with each other. It is on record that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d coal from M/s Laxmi Agency/ Jaya Agency. The benefit under SSI exemption is not available to the units where there is mutuality of interest and pervasive control of one unit by the other is established which is established in this case. It is also observed that there had been unaccountal of clearance of winding wire, roll products without payment of Central Excise duty, which were found to be maintained in private records. All these evidences have been accepted by Shri Ashish Gupta in his statement before the Investigating Officer. Whatever has been accepted need not be proved as has been held in case of Commissioner of Customs Excise, Madras vs Systems Components Private Limited [ 2004 (165) ELT 136 (SC) the relevant portion of the order para 5 is reproduced as under; 5. The appeal filed by the Department has been disposed of by the Tribunal by holding that the Department has not proved that these parts were specifically designed for manufacture of Water Chilling Plant in question. The Tribunal has notes the Technical details supplied by the Respondent and the letter of the Respondent dated 30th November, 1993 giving details of how these parts are used in the Chilling P ..... X X X X Extracts X X X X X X X X Extracts X X X X
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