M/S. Khetan Spong & Infrastructure P Ltd vs Commissioner Of Central Excise

[Arising out of Order-In-Appeal No. 115/RPR-I/2013 dated 15.5.2013 passed by Commissioner of Central Excise (Appeals), Raipur I ]

For approval and signature:

Honble Mr Ashok Jindal, Member (Judicial)

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

M/s. Khetan Spong & Infrastructure P Ltd. Appellants

Vs.

Commissioner of Central Excise Respondent

Raipur I

Appearance:

Shri Jatin Mahajan, Advocate for the Appellants

Shri R K Mishra, AR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing /decision: 3.02. 2015

FINAL ORDER NO. A/ 50349 /2015-Ex(SM)

Per Ashok Jindal :

The appellant is in appeal against the impugned order wherein the duty along with interest and penalty are confirmed against the appellant on the charge of clandestine removal of the goods.

2. The brief facts of the case are that in the month of December, 2006 a search was conducted at the premises of Kailash Traders wherein some records were found. In those records, the invoices were coded as B and R. B stands for bill, R stands for without bill. In those records it was revealed that 4 invoices which were marked R were found and statement of proprietor Shri Kailash Agrawal was recorded wherein he admitted that he has received the goods from M/s. Khetan Sponge and Infrastructure without the cover of duty paying invoices. Thereafter the statement of Shri Ashok Khetan, Director of M/s. Khetan Sponge and Infrastructure was recorded wherein he has admitted that they have cleared the goods to Kailash Traders without the cover of invoices. In these set of facts, the show cause notice was issued to demand duty for clandestine removal of the goods along with interest and proposal of penalty was also made. Duty was demanded along with interest and penalty equal to the duty was confirmed. Aggrieved from the said order appellant is before me.

3. Learned Counsel for the appellant submits that case has been made out on the basis of statement of the Director and no corroborative evidence has been produced. Therefore, demand is not sustainable. To support his contention he relied on the decision of Vikram Cement P Ltd. reported as [2014 (303) ELT A 82 (All)].

4. On the other hand, Learned AR submits that in this case certain documents were recovered at the time of search conducted at the premises of the dealer and on the basis of those documents, statement of the dealer as well as Director of the appellant were recorded where they have admitted the charge of clandestine removal of the goods without payment of duty. Therefore, the duty is rightly demanded from the appellant as it is admitted fact what is admitted by the appellant need not be proved as held by Apex Court in the case of System and Component [2004 (165) ELT 136 (SC).

5. Heard both sides. Considered the submissions.

6. The contention of the learned Counsel for the appellant is not acceptable in the facts of the case as in this case corroborative evidence for the period is on record and invoices recovered, corroborate the charge of clandestine removal of the goods though case law relied by the learned Counsel for the appellant in the case of Vikram Cement (supra) is not applicable to the facts of this case as in that case, case has been booked against the assessee merely on the statement of Managing Director of the assessee. But in this case, Revenue is able to prove the corroborative evidence. Therefore, I hold that the charge alleged in the show cause notice stand proved by clandestine removal without payment of duty. In these circumstances, the duty along with interest as confirmed by the impugned order is upheld. Further, I find that contention of the learned Counsel is that benefit of proviso to section 11AC be given to them as they have paid the duty before issuance of show cause notice. On perusal of the record, I find that the appellant has not paid the interest for the intervening period within 30 days of the adjudication order, therefore, benefit of proviso to Section 11AC is not available to them. In these circumstances, penalty confirmed by the lower authorities is also upheld. In these terms, appeal is dismissed.

(dictated and pronounced in the open court )

( Ashok Jindal ) Member(Judicial)

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