Shri Anand Kumar Holani, Director vs C.C.E. Raipur

[Arising out of Order-in-Appeal No. 117-118/RPR/I/2013 dated 15.05.2013 by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Raipur].

For approval and signature:

Honble Shri 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. Albright Steel Industries Ltd.

Shri Anand Kumar Holani, Director .Appellants

Vs.

C.C.E. Raipur .Respondent

Appearance:

Shri Manish Sharma, Advocate for the Appellants

Shri. G.R. Singh, DR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing: 28.01.2015

FINAL ORDER NO. 50282-50283/2015-EX(SM)

Per Ashok Jindal:

The appellants are in appeals against the impugned order wherein duty has been demanded from M/s Albright Steel Industries Ltd. on account of clandestine removal of goods along with interest and penalty on both the appellants have been imposed.

2. The facts of the case are that the main appellant is a manufacturer of HS Strips and MS Flats. Being the manufacturer thereof an investigation was conducted on the transporter of the goods. It was revealed that in transporters ledger there was an entry of transporting 15 consignments of the appellant. Consequent to that the ledger of the appellant was also verified and it was found that appellant has entered only 13 consignments in their books. But neither incriminating document found nor the statements were recorded of the appellant. The investigation was also conducted at the consignees premises. There ledger account was also verified and it was found that only 13 consignments were entered in their books. There also neither incriminating document found nor the statement was recorded. On the basis of the transporters ledger, it was alleged against the appellant that they have clandestinely removed the goods without payment of duty. Therefore, a show cause notice was issued to demand the duty on the basis of transporters record along with interest and penalty on both the appellants was proposed. The adjudication took place, demand proposed on the show cause notice was confirmed along with interest and penalty on both the appellants were imposed. The Adjudication order was confirmed by the Ld. Commissioner (A). Aggrieved from the said order the appellants are before me.

3. The Ld. Counsel for the appellant submits that the demand sought to be confirmed against the appellant on the basis of the ledger account of the transporter but no other records of the transporter were verified to establish the fact that the transporter has transported 15 consignments of the appellant and no incriminating document was found at the end of the appellant as well as the consignee. No other investigation was conducted. Therefore demand is not sustainable in the absence of any corroborative evidence.

4. On the other hand the Ld AR oppose the contention of the Ld. Counsel and submits that the transporter is maintaining the records for transporting the goods and if the transporter has not transported the goods, there is no question of making entry in their books. For that no question arises for making fake entry in their books and in the case of clandestine removal of the goods the buyer or the appellant will not leave any document on record to establish clandestine removal of the goods. In these circumstances, demand is rightly confirmed against the appellant for clandestine removal of the goods.

5. Heard the parties. Considered the submissions.

6. In this case allegation of clandestine removal is made against the appellant on the basis of the ledger record of the transporter. In fact when the transporter is transporting the goods, the transporter is required to issue the goods transportation receipt and on the basis of this receipt the ledger account is prepared. Revenue has failed to produce the goods transportation receipt to establish their charge of clandestine removal of the goods by the appellant. In the absence of any corroborative evidence, benefit of doubt goes in favour of the appellant. In these circumstances, I hold that revenue has failed to prove their case. Therefore, demand confirmed against the appellant is not sustainable. Accordingly, the penalties on both the appellants are not imposable.

7. In result appeals are allowed with consequential relief if any.

(Dictated and pronounced in the open court)

(Ashok Jindal) Member (Judicial)

Bhanu

2

E/59621 & 59622/2013-EX(SM)