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TMI Blog2024 (12) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... ent availment of cenvat credit on invoices without receiving the inputs. Voluminous records have been seized during the search operation and subsequently statements of various persons including the employees of the appellant have been recorded. The evidences that have been brought on record revealed that the appellant has indulged in clandestine manufacture and clearance of the excisable goods without payment of duty; also in the truck load cleared excess quantity of goods than the quantity mentioned in the invoices for clearance. The argument of the appellant that only on the basis of these statements and without any corroborative evidence from the suppliers of raw materials, consumption of electricity, purchaser of the goods since not investigated and brought on record, the confirmation of the demands and recovery of cenvat credit alleging fraudulent availment cannot be sustained. Similar arguments have been raised by the appellant before the Special Court for Economic Offences at Bangalore which has been dealt at length and ultimately the Court analysing the evidences and statements of witnesses called for who were subjected to examination-in-chief and cross-examination, and als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Magnetics (RML-II), Coimbatore is reduced to Rs.25,000/- to meet the ends of justice. Penalty imposed under other provisions on all appellants are set aside. The impugned order is modified to the above extent - the appeals filed by the appellants are disposed of. - HON'BLE DR. D. M. MISRA , MEMBER ( JUDICIAL ) And HON'BLE MRS. R. BHAGYA DEVI , MEMBER ( TECHNICAL ) Shri B. N. Gururaj , Advocate , for the Appellant Shri H. Jayathirtha , Superintendent ( AR ) for the Respondent ORDER PER : D. M. MISRA These appeals are filed against Order(Denovo) No.5/2011 dated 11.02.2011 passed by the Commissioner of Central Excise, Bangalore. 2. Briefly stated facts of the case are that the appellant are engaged in the manufacture of electrical stampings and parts of motors falling under Chapter 8312 / 8503 of the Central Excise Tariff Act, 1985. The appellant are having another unit termed as Unit-II at Coimbatore. On the basis of intelligence, their Unit-I at Bangalore was visited by the Preventive Officers of the Department to investigate the alleged fraudulent availment of cenvat credit on the strength of invoices issued by their Unit-II located at Coimbatore without actually receivi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Tribunal has set aside the order of the adjudicating authority and remanded the matter for fresh decision. He has submitted that the appellant company is engaged in the manufacture of core magnets of rotors for electric motors; Silicon steel sheet is the main raw material. Also, the appellant manufactured aluminium die cast rotors for which aluminium ingots is the raw material. The rotor magnets were manufactured by process of shearing of sheets, punching them into varieties of blanks, stacking them and riveting them into core magnets. He has submitted that it is alleged that the appellant has removed finished goods without invoice to its second Unit and other customers without payment of duty; removed finished goods in excess of invoice quantities and also availed cenvat credit fraudulently on invoices without receipt of inputs in their factory. He has submitted that the learned Commissioner has not entered any finding on the allegation of clandestine manufacture and removal and relied on certain parts of the order which has been set aside; therefore, the order is non est in law. Further, he has submitted that the allegation of clandestine removal of goods requires evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the other four appellants. The appellants paid the fines and closed the matter. 3.5. Further, he has submitted that it is a well settled law that criminal trial and adjudication are independent to each other; hence judgment in one proceeding cannot affect the outcome of the other. The trial court guided by Section 36B of the Central Excise Act, 1944 and the Indian Evidence Act, 1872 and has not examined other essential circumstantial evidences. Further, he has submitted that the trial court has not considered circumstantial evidences such as purchase of raw material, source of finance and payments to suppliers, factory s capacity to produce the additional quantity of final products, power consumption, details of purchasers of the clandestinely manufactured goods etc.; therefore, this Tribunal should take an independent view on the subject. In support, he has referred to the following case laws:- i. Kothari Pouches Ltd. Vs. CCE [2001(135) ELT 531 (Tri. Del.)] ii. Sarita Software Industries Ltd. Vs. CCE [2010(251) ELT 248 (Tri. Bang.)] iii. AR Shanmugasundaram Vs. CESTAT, Chennai [2002(380) ELT 151 (Mad.)] 4.1. Per contra, learned AR for the Revenue has reiterated the findings of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ective invoices. Besides, it was also came to the notice of the Department that the appellant was not only facilitating their Unit at Coimbatore to avail cenvat credit by raising invoices without movement of goods but were also indulging in fraudulent availment of cenvat credit on the basis of invoices without receiving the inputs. These discrepancies were pointed out to the persons / employees concerned viz. Mr. G.R. Govindarajan, Managing Director, Mr. R. Rajendran, Manager-Accounts and Mr. R.N. Ramesh, In-charge of Dispatches. After seeing the relevant documents placed before them, they have, in clear terms, accepted about the existence of removal of goods without payment of duty and none of the statements have been retracted. Thus, the Department has not only been able to establish the fact of clandestine manufacture and removal with the help of documents like dispatch registers maintained by the appellant and transporters records but also has supported by statements of concerned persons involved in the day-to-day activities of manufacture and clearance. The Special Court for Economic Offences at Bangalore recording the statements, examined the witnesses and viz-a-viz statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed with the statutory record in drawing inference about the difference in the figures mentioned in the statutory records and relevant private records like stock register, clearance documents etc. Later the contents of these documents have been verified by recording statements of the persons who are conversant in the maintenance and using of these records in their day-to-day conduct of business. The argument of the appellant that only on the basis of these statements and without any corroborative evidence from the suppliers of raw materials, consumption of electricity, purchaser of the goods since not investigated and brought on record, the confirmation of the demands and recovery of cenvat credit alleging fraudulent availment cannot be sustained. Similar arguments have been raised by the appellant before the Special Court for Economic Offences at Bangalore which has been dealt at length and ultimately the Court analysing the evidences and statements of witnesses called for who were subjected to examination-in-chief and cross-examination, and also referring to various documentary evidences placed before the Court by the prosecution and taken on record, arrived at the conclusion that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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