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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 ..... lant 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 receiving the goods. Also, it came to the knowledge of the Department that the appellant was indulging in clandestine removal of excisable goods without payment of duty and accordingly both the Units were simultaneously searched on 14.09.2005. Relevant records were retrieved from the premises and statements were recorded as a part of the investigation of the alleged activities of removal of goods without payment of duty and availment of cenvat credit fraudulently. On completion of investigation, a show-cause notice was issued to the appellant on 23.05.2006 proposing to recover total duty of Rs.51,66,976/- involved on the goods removed clandestinely and recovery of fraudulent availment of cenvat cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment 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 of clandestine manufacture of goods which has not been investigated at all. The Department has not conducted investigation about the excess consumption of inputs, sources of excess raw material, source of finance for purchase of excess raw materials, excess power consumption, extra capacity for manufacture of 720 MTs of clandestinely removed goods, receipt of money consideration etc. Further, he has submitted that no seizure of finished goods removed clandestinely nor unaccounted stocks found in the factory premises during the course of visit. The demand is based on assumptions and presumptions that goods were moved in the trucks are finished goods ignoring the fact that it might have be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the Commissioner. He has submitted that on investigation against the appellant-company, it revealed that the appellant had clandestinely removed goods without invoice involving duty of Rs.26,49,425/-; cleared without payment of duty in excess of quantity involving duty of Rs.25,17,551/- and fraudulently availed cenvat credit of Rs.5,70,619/- on the basis of invoices only without receipt of inputs. The learned AR for the Revenue has submitted that the criminal proceedings initiated against the appellant by filing complaint under Section 200 of Cr.P.C. for the offences committed by the appellants and punishable under Section 9 and 9AA of the Central Excise Act, 1944 has attained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 statements recorded and the documentary evidences placed before it, upheld the allegation made by the Department holding that the same are proved and ordered conviction of the appellant along with its staff. The statements placed before the Hon'ble Court have been subjected to detailed examination in chief and cross-examination and based on the result of such examination and cross-examination, the Hon'ble Court had convicted all the accused. He has further submitted that the admitted facts need not be proved by the Department. In support, he has referred to the following case laws:- a. International Cylinders Pvt. Ltd. [2010(255) ELT 68 (HP)] b. Systems and Components Pvt. Ltd. [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 there had been manufacture and clandestine clearance of excisable goods and consequently convicted all the accused who are appellants before us. The appellant accepted the verdict of the Special Court for Economic Offences at Bangalore and paid penalty as imposed on them. Needless to mention, the trial under criminal proceeding is more rigorous where the principle of law is based on the theory of establishing a case beyond reasonable doubt whereas in Departmental adjudication, it is preponderance of probability. In other words, the requirement of evidence to prove a case in a criminal case is more rigorous than in comparison to confirmation of demand by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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