9911796707
TMI Blog2024 (10) TMI 561X X X X Extracts X X X X X X X X Extracts X X X X ..... 2015 (6) TMI 777 - SUPREME COURT] . The identical issue in the case of COMMR. OF CEN. EXC. CUSTOMS SURAT VERSUS SURESH SYNTHETICS ORS. [ 2016 (4) TMI 838 - SUPREME COURT] , the Hon ble Supreme Court held that ' From the orders passed by the Tribunal and the High Court, it is clear that the revenue has really built its case on the base of the statement made by the authorized officer and, accordingly, there has been intervention by the Tribunal and the High Court. If the whole case is founded on the statement of the authorised officer of the respondent without verification of any other independent evidence, it would not merit acceptance.' In view of the above judgments, it is clear that the present appeals as well as the above judgments are on identical issue and facts. Therefore, the ratio of the above judgments are directly applicable in the present case. It is also noteworthy that in the present cases, the show cause notices were kept in call book by the department awaiting the decision of Supreme Court in the cases cited above. This also shows that the present appeals are on the identical issue and facts involving the same investigation and evidences as that in the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd dropping the proceedings is not legal and correct. Therefore, the matter needs to be remanded to the Adjudicating Authority, for deciding a fresh by considering each and every evidence relied upon in the show cause notice. He placed reliance on the following cases:- M/s Agarwal Metals Alloys Vs. CCE, Surat-II vide final order No. A/10552/2013 dated 18.04.2013 (CESTAT-Ahemdabad) M/s. Bhagwati Steelcast Ltd Ors. Vs. Commissioner of Central Excise, Nashik- 2012 TIOL 1257 CESTAT (MUM.) MITC Rolling Mills Pvt Ltd Ors. Vs. Commissioner of Central Excise Customs, Nashik- 2016 TIOL 1711 CESTAT (MUM.) 3. Shri Prakash Shah, Learned Counsel with Shri Mohit Raval, Advocate appearing on behalf of the Respondent/Assessee at the outset submits that the Learned Commissioner rightly dropped the proceeding by placing reliance on the judgments in various cases of Tribunal as well as Supreme Court. In all the cases, the common investigation was carried out and evidences and contention of the Revenue was absolutely identical. Therefore, dropping of proceeding on the basis of the judgment in other case on the same issue is correct and no fault is found in passing such adjudication order by which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he show cause. It was further stand of the assessee that normal price for sale to non-Bhiwandi buyers is available and, therefore, the entire show cause notice is based on the assumption that there is no factory gate sale which is unsustainable. In addition, it was set forth that the show cause notice did not indicate on what foundation the allegations have been made because the assessee had invoices for a specific quantity and that specific quantity was delivered to the ultimate buyer and there was no part delivery. Under these circumstances, a prayer was made to drop the proceedings. 3. The Commissioner of Central Excise who is the adjudicating authority did not accept the submissions and repelled the submissions of the assessee and opined that there was suppression; and there was undervaluation by the assessee only to a limited extent. Be it noted, the Commissioner was more influenced by the factum that certain sales were made to genuine buyers and certain sales were made through a broker and the invoice showed name of other buyers. 4. Because of the aforesaid perception, he repelled the stand put forth in the show cause. The Adjudicating authority confirmed the demand of certai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ither directly or through any channel. The Tribunal noted the finding recorded by the Commissioner and thereafter proceeded to state thus : 7. In Punjab Oil Silicate Mills, the Department while alleging clandestine manufacture and removal of the goods relied on the figures furnished by the assessee to the Department of Industries or as admitted by the party in their affidavits filed before the Department for getting the coal. The Tribunal took the view that any information obtained from the Department of Industries is not sufficient proof to show that the goods were manufactured unless it was substantiated with other evidence of clandestine removal of the manufactured goods. It was also held that even admission, confession or sworn statement given by the appellants before other authority in different context for different purpose cannot be taken as conclusive proof in the absence of positive evidence adduced by the Department. At best it may be an inference but not substantial proof. Similar view was taken in Rishab Refractories Pvt. Ltd. [1996 (87) E.L.T. 93]. In an earlier decision of this Tribunal in Alwyn Industrial Corporation v. CCE, New Delhi [1988 (33) E.L.T. 376], the Depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting authority has placed reliance on the approximate stock value statement which was given to the bank to arrive at the conclusion that the assessee had undervalued the sale. The Tribunal, by adequate reasoning has repelled the said analysis made by the Commissioner and disposed it of. It has rightly done so. That apart, the Revenue has not established by way of adducing any cogent evidence that the assessee had any godown for the purpose of selling the goods at his behest. Be it stated, the matter would have been on a totally different footing, had the Revenue been able to produce some evidence on that score and further had there was a price difference in the invoices that were prepared in favour of the genuine buyers and the brokers. In the absence of any material on record, we are impelled to think that the factual analysis made by the Tribunal cannot be found fault with. 10. Consequently, the appeal filed by the Revenue, being devoid of merits, stands dismissed. There shall be no order as to costs. CIVIL APPEAL NOS. 1688-1705, 1971-1981, 2710, 3166-3168, 3416, 3574-3576, 5214, 6909, 7436, 7648-7651 AND 8023-8028 OF 2004, CIVIL APPEAL NOS. 1760-1764, 3572-3573 AND 5541 OF 2005, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd hence, the question of clandestine removal does not arise. 7. It is noticeable that the High Court has accepted the technical report. It is submitted by Mr. Patwalia that the revenue had no occasion to contest the technical report. In our considered opinion, the revenue should have been afforded an opportunity to counter the technical report filed by the assessee by filing its technical report, for the whole controversy hinges upon the differential quantity and if there is any differential quantity, the issue of removal would arise. Regard being had to the same, we set aside the order passed by the High Court and that of the Tribunal and remit the mater to the Tribunal to permit the Revenue to file a technical report. If the Tribunal forms the view that there has to be further technical opinion, it may call for it or it may permit the parties to adduce further evidence to substantiate the plea. We may hasten to clarify that while dealing with the matter, the Tribunal shall not take into consideration the statement of the authorised officer alone. If there will be any differential quantity on the analysis of the aforesaid aspects, then the said statement can be pressed into servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame of fictitious/non-existing firms, while the goods were actually being cleared to godown at Bhiwandi (Maharashtra), Surat (Gujarat) from where they are subsequently being sold through brokers to actual buyers at higher value, search was conducted by the officers in the godowns at Bhiwandi where the PTY cleared from Daman was stored and also the premises of the main transporters and several records were seized. Show cause notices were thereafter issued alleging that the assessees had issued invoices to show that the sale has been effected at the factory gate whereas sales were actually effected from godown, warehouses of the transporters at Bhiwandi and that the sale price shown on the invoice did not reflect the correct assessable value since the buyers name figured in the invoice were fictitious. It was further alleged that the sale between the buyer and the seller was finalised and the payments from actual buyers were received through crossed bearer cheques and not through account payee cheques. Sale realisation shown in the sale ledger is from bogus buyers whose names appear in the invoices and not from actual buyers while delivery from godown was given to actual buyers and n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctory gate sales. 5. The Commissioner rejected the proposal in the show cause notice on the basis of comparison of the price of a unit of M/s. Reliance Industries. Commissioner therefore upheld only a portion of the demand in the show cause notice. He dropped the proposal for confiscation of land, plant and machinery and imposition of penalty on the Managing Director and the transporter. 6. In the appeals filed by the Revenue against order-in-original the main contention taken is that Commissioner should not have modified the method of calculation proposed in the show cause notice on the basis of monthly statement before the bank. It is also contended that there was no justification in exonerating the Managing Director and the transport company. It is also submitted that there was sufficient material for justifying confiscation under Rule 173Q(2) of the Central Excise Rules and, therefore, the Commissioner should have upheld the confiscation. In the appeals filed by the assessees several contentions are raised challenging the order of the Commissioner. It is contended that the sale to the buyers at Bhiwandi had taken place at the factory gate and not at Bhiwandi as held by the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an inference but not substantial proof. Similar view was taken in Rishab Refractories Pvt. Ltd. - 1996 (87) E.L.T. 93. In an earlier decision of this Tribunal in Alwyn Industrial Corporation v. CCE - 1988 (33) E.L.T. 376, the Department sought to place reliance on two letters of State Bank of India informing the excise authorities that the appellant had obtained cash credit limit of Rs. 50,000/-, that loan amount was sanctioned for manufacture of electric wires and cables and as per stock statement received from the appellants manufacturing of cable was done by them. The bank had forwarded 12 stock statements submitted by the assessee. The assessee had denied manufacture of wires and cables. The Tribunal took the view that letters received from the bank cannot be relied on to come to the conclusion that the assessee had manufactured wires and cables without any corroborating evidence. 7. In the light of the above authorities we hold that bank statement by itself cannot be the basis for holding that there was undervaluation. It is relevant to note that the Commissioner held that although this is a case of alleged undervaluation, there is absolutely no whisper of any evidence of flo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
