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TMI Blog2022 (5) TMI 473X X X X Extracts X X X X X X X X Extracts X X X X ..... val are serious allegations which cannot sustain unless there is clinching evidence. Reverting back to the facts of the present case it is observed that except for the statement of the present appellants there is no investigation on part of the Department either from anyone who acquires possession of, or is in any way concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing of excisable goods. Not only this, it is observed that the investigation initially began with the search in the premises of M/s. Bhiwadi Rolling Mills and the show cause notice has been issued based on the documents (soft as well as hard) as were recovered from the factory of M/s. Bhiwadi Rolling Mills as well as the residential premises of its Manager, Sh. Ankit Keriwal - Apparently and admittedly no search was ever got conducted in the premises of M/s. Rathi Bars Ltd. No document has been recovered from the premises of the said company or from the premises of either of these appellants - In such circumstances, it stands apparently clear that the investigation against the present appellants got initiated based upon the third party evidence and it got confirmed also based o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 497/2018 dated 29.11.2018 4359 dated 9.6.2016 2. E/50219/2019 S.K. Lakhotia 06/2018 dated 06.03.2018 468-472/2018 dated 5.11.2018 4359 dated 9.6.2016 3 E/50220/2019 Sarjit Singh 06/2018 dated 06.03.2018 468-472/2018 dated 5.11.2018 4359 dated 9.6.2016 4. E/50221/2019 Hukum Singh Rawat 06/2018 dated 06.03.2018 468-472/2018 dated 5.11.2018 4359 dated 9.6.2016 3. The facts in brief are as follows: Appellants Shri S.K. Lakhotia, Sh. Sarjit Singh and Sh. Hukum Singh Rawat are the employees of M/s. Rathi Bars Ltd. and appellant Sh. Durga Prasad Sahu is the commission agent working for the said company. M/s. Rathi Bars Ltd. is engaged in manufacturing of MS TM Bars and as such are holders of Central Excise Registration. On the basis of intelligence gathered by DGCEI New Delhi, that the premises of a company named M/s. Bhiwadi Rollin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded during the stage of investigation are denied to have any admission about the alleged clandestine removal as has otherwise been held by the adjudicating authorities below. It is submitted that those findings are wrong and are liable to be set aside. Learned Counsel further mentioned that reliance of the Adjudicating Authorities below on the statements of the present appellants otherwise got hit by the provision under section 9 D of the Central Excise Act. It is submitted that none of those witnesses were examined by the adjudicating authority itself. Those statements, hence wrongly been relied upon. Imposition of penalties is liable to be set aside on this ground of violation of section 9 D of the Central Excise Act. With these submissions, learned counsel has prayed for the order under challenge to be set aside and appeals under consideration to be allowed. Learned Counsel has also laid emphasis upon the findings of Tribunal Chandigarh Bench in an appeal no. ST/60304/2017 in the case of Col. Randhir Singh Malik vs. CCE Rohtak as was decided vide Final Order no. 60913/2021 dated 23.08.2021 wherein penalty has been waived of by the present Tribunal Chandigarh Bench, in view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to do with the payments . Shri Durga Prasad Sabu again tendered his statements on 8.5.2014 before the Sr. Intelligence officer DGCEI, New Delhi under Section 14 of Central Excise Act 1944 wherein also he deposed the same. On 29.12.2015 wherein he stated that in continuation to his statements dated 23.9.2013 and 8.5.2014 he stated that he was not in position to bifurcate the quantity as how much supply made from M/s Rathi Bar and how much from Rathi Special Steel Ltd.; that he was in contact with Shri Anupam Rathi (presently he is no more) Director of M/S Rathi Bar Ltd. and Rathi Special Steel Ltd. and became an instrumental agent in supply of said goods to M/s Bhiwadi Rolling Mills P Ltd. Bhiwadi as mentioned in the ledger print in the books of accounts of M/s Bhiwadi Rolling Mills P Ltd. under the ledger head of Sabu on which he had already put his signature in token of correctness. Statement of Shri Sarjit Singh, authorised signatory M/s Rathi Bar Ltd. and Rathi Special Steel Ltd. was recorded before the Sr. Intelligence officer DGCEI, New Delhi on 7.10.2013 wherein he stated that his job in the factory was to deal with the matters relating to Central Excise and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that they were selling the goods at prices decided mutually with buyer. 8. After hearing the rival contentions and perusing the entire record, I observe and hold as follows: 9. The Original Adjudicating Authority Commissioner (A) also relying upon the above said statements have held that the statements have are sufficient admission about the quantities of the MS Ingots, MS Rolls to be sold to M/s. Bhiwadi Rolling Mills through M/s. Rathi Bars Ltd. Without issue of invoice and without payment of duty. Accordingly the allegations of clandestine removal of the goods by M/s. Rathi Bars Ltd. have been confirmed and that the duty was demand was confirmed against the company and the penalty has been imposed upon the present appellants, they being the employee / commission agents for the company. But the allegations of clandestine removal are serious allegations which cannot sustain unless there is clinching evidence. Hon ble Apex Court in the case of Continental Cement Company vs Union of India 2014 (309) ELT 411 (All.) has held as follows: 12. Further, unless there is clinching evidence of the nature of purchase of raw materials, use of electricity, sale of final products, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. The relevant case law in the case of Bajrangbali Ingots Steel Pvt. Ltd. Suresh Agarwal vs. CCE, Raipur in Appeal No. E/52062 52066/2018 heard on 16.11.2018, which is held as follows:- 9. The law i.e. as to whether the third party records can be adopted as an evidence for arriving at the findings of clandestine removal, in the absence of any corroborative evidence, is well established. Reference can be made to Hon ble Allahabad High Court decision in the case of Continental Cement Company Vs. Union of India 2014 (309) ELT 411 (All.) as also Tribunal s decision in the case of Raipur Forging Pvt. Ltd. Vs. CCE, Raipur-I 2016 (335) ELT 297 (Tri.-Del.), CCE ST, Raipur Vs. P.D. Industries Pvt. Ltd. 2016 (340) ELT 249 (Tri.-Del.) and CCE ST, Ludhiana Vs. Anand Founders Engineers 2016 (331) ELT 340 (P H). It stand held in all these judgements that the findings of clandestine removal cannot be upheld based upon the third party documents, unless there is clinching evidence of clandestine manufacture and removal of the goods. 12. Further, it is observed from the statements as mentioned above that Shri Durga Prasand Sabu, though deposed about sales to have been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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