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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 ..... ority) by which he has confirmed the demand raised by the Show Cause Notice No. HV16 INV/CG/27/12-13 dated 07.05.2015 against the appellants. As the impugned order is passed against all the appellants, they are being disposed of by this common order. 2. The brief facts of the case are that all four appellants are located in Chhattisgarh on different plots of land and two of them are registered with the Central Excise Department. The appellants, M/s Ganpati Steels (Noticee No. 1) and M/s Ganpati Allied Works Limited (Noticee No. 2) are registered with Central Excise Department and availing the SSI exemption, but the other two units, namely, M/s Ganpati Industries (Noticee No. 3) and M/s Ganpati 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 omissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion for previous years also. (iv) It was also submitted that to club clearance by the four appellant units, it is important to establish that there is pervasive control over one unit by the other units, and also there is mutuality of interest among the various units. This aspect was not examined by the Ld. Adjudicating Authority in the impugned order. It is submitted that all these four units are independent of each other, having different plants and machineries and PAN Nos, Excise registrations, DIC licences, separate computer network and separate bank accounts. Hence, these units are financially independent of each other without any financial flow back amongst. Constitution of 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... & Industries vs. CCE, Allahabad reported in 2016 (334) ELT 595 (All) (iv) Popular Paints & Chemicals vs CCE & ST, Raipur-Final Order No. A/52716-52718/2018-EX(DB) dated 06.08.2018 (v) Shiva Polypast Pvt. Ltd. vs CCE, Kanpur-Final Order NO. A/71931-71938/2018-EX(DB) dated 01.08.2018 6. It was further submitted that the statements of Shri Ashish Gupta were not voluntary, but were obtained under threat and coercion, as would be evident from the statement itself which was typed one and there was a lot space left between the last sentence and the signature, which indicated that the statement was typed after getting signature of Shri Ashsh Gutpa before 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 allege ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following case laws; (i) Anver P.V. vs. P K Basheer- MANU/SC/0834/2014 (ii) Ambica Organics reported in 2016 (334) ELT 97(Tri-Ahmd) (iii) Premier Instruments & Controls Ltd. vs. Commissioner of Central Excise, Coimbatore reported in 2005 (183) ELT 65) (Tri.-Chennai) (iv) Premier Instruments & Controls Ltd. vs. Commissioner of Central Excise, Coimbatore reported in 2005 ELT 65 (Tri.-Chennai) (v) Jayashree Vyapar Ltd. vs. Commissioner of Central Excise, Rajkot reported in 2015 (327) ELT 380 (Tri.-AHMD) (vi) Agarvanshi Aluminium Ltd. vs Commissioner of Customs (I) Nhava Sheva reported in 2014 (299) ELT 83(Tri.-Mumbai). (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und short. (i) Ld. AR further submitted that the purchase of un accounted coal, from M/s Laxmi Industries/Jaya Industries, and unaccounted production of GI wires and stay wire by Notice No. 1 and barbed wire/ HB and rolled Product by Noticee No. 2 are established in this case, on the basis of record No. 11 (RUD-17) which was containing loose papers seized from the office premises of Notice No. 1 that clearly revealed the suppressed production of finished goods of the Noticee No. 1 2,3. Similarly, the records No. 1 which is RUD-20, record No. 2 which is RUD-21 revealed that they have clandestinely cleared 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of all units and he agreed with the statement of Shri Ashish Gupta and Shri Gurpreet Singh Tuli, Manager, recorded under Section 14 & Excise Act during the investigation Smt. Sandhya Gupta, notice no 6, proprietor of Noticee No. 3 and also Director of Noticee No. 2, in her statement 09/02/15, deposed that she is proprietor of the Noticee No. 3, however, entire work including in the production sale, purchase of raw material, transportation of other documents, accounts and records etc., are looked after by her husband Shri Ashsh Gupta, she also agreed to the statement of Shri Ashish Gupta (Noticee 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9D of Central Excise Act, 1944 and places reliance on the various case laws as stated in para 5 (V) as above. But from the appreciation of evidences placed before us, we find that Ld. Adjudicating Authority has permitted cross examination of various persons as requested, which were conducted on 19.09.2017and 13/10/2017. During cross examination none of the witness deviated from their earlier statements reiterated from earlier statements, which were relied upon by the investigation. In such a circumstances, we are of the opinion that the provisions of Section 9 D as definitely 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 als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gard 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 of electricity furnished by the manufacturing noticee. This variation in the electricity consumption proves the abnormal production of finished goods as recorded in the private records. This abnormal consumption of electricity would lead to the fact that there had been manufacturing of finished goods without bringing those on the recorded production. This aspect further corroborated by purchase of unaccounted 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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