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CX – Allegations of clandestine removal, primarily based upon consumption of electricity read with statements and the computer printouts, cannot survive: CESTAT

2019-TIOL-2408-CESTAT-DEL

IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST BLOCK NO 2, R K PURAM, NEW DELHI-110066

Appeal Nos. E/51676, 51825, 51842, 51843, 52209/2018-(SM)

Arising out of Order-in-Appeal No. OIA-41-45/NG/CE/JPR/2018, Dated 22.03.2018
Passed by Commissioner of CGST & Central Excise-Jaipur-I (Appeal)

Date of Hearing: 04.02.2019
Date of Decision: 08.02.2019

PAWAN JEET SINGH
ANIL SHARMA
KAMAL SPONGE STEEL AND POWER LTD
KARAN PAL SINGH
KAMAL JEET SINGH

Vs

COMMISSIONER CENTRAL EXCISE AND SERVICE TAX
JAIPUR-I

Appellant Rep by: Smt Rinki Arora, Adv.
Respondent Rep by: Shri K Poddar, DR

CORAM: Archana Wadhawa, Member (J)

CX – M/s Kamal Spong & Steel Power Ltd. were engaged in manufacture of MS ingots, MS runner and riser TMT bars Mill Rolls – Their factory was visited by officers of anti-evasion branch, who conducted various searches and verifications, as a result there was shortages of certain final materials as also of the raw-materials – During further investigations, computer generated as also written papers were recovered which according to Revenue revealed clandestine removals during months of April, 2011, May and June, 2011 – Statements of various persons were recorded which accepted the charts prepared by the officers indicating the clandestine activities – Detailed references to all these statements are not being made as it is seen that ultimately the revenue’s case is based upon the consumption of electricity read with the said loose documents and computer printouts – Based upon the same, proceedings were initiated along with another proceedings in respect of same assessee alleging clandestine removal of proposing confirmation of the same – It is seen that the identical proceedings initiated in respect of same assessees resulting in confirmation of demands of more than Rs. 10 crores were considered by Tribunal and vide its Final Order dated 22/01/2019, the entire evidence produced by Revenue was considered and appreciated and the Tribunal came to the conclusion that allegations of clandestine removal, primarily based upon the consumption of electricity read with the statements and the computer printouts, are not proved and accordingly the order was set aside – Inasmuch as the present impugned order is also a part of the same set of investigations, same evidences and identical proceedings – By following the said referred decision of Tribunal the impugned order is set aside: CESTAT

Appeals allowed

FINAL ORDER NOS. 50199-50203/2019

Per: Archana Wadhawa:

All these appeals are disposed off by a common order as they arise out of the same impugned order passed by the lower Authorities vide which the demand of duty of Rs. 17,30,559/- stands confirmed against M/s Kamal Sponge Steel & Power Ltd., along with the confirmation of interest and imposition of penalty of identical amount. In addition penalty of Rs. 50,000/-each stands imposed upon Shri Karan Pal Singh, Chairman of M/s Kamal Spong Steel & Power Ltd., and on Shri Pawan Jeet Singh and Shri Kamal Jeet Singh, Directors and upon Shri Anil Sharma, General Manager.

2. I have heard both the sides duly represented by Smt. Rinki Arora, Ld. Advocate on behalf of the appellant and Shri K Poddar, Ld. DR on behalf of the Revenue.

3. It is seen that the manufacturer appellant M/s Kamal Spong & Steel Power Ltd. were engaged in the manufacture of MS ingots, MS runner and riser TMT bars Mill Rolls falling under chapter 72 of the first schedule to the Central Excise Tariff Act, 1985. Their factory was visited by the officers of the anti-evasion branch, who conducted various searches and verifications, as a result there was shortages of certain final materials as also of the raw-materials. Statements of various persons were recorded admitting such shortages.

4. During the course of further investigations, computer generated as also written papers were recovered which according to the Revenue revealed clandestine removals during the months of April, 2011, May and June, 2011. Statements of various persons were recorded which accepted the charts prepared by the officers indicating the clandestine activities. Detailed references to all these statements etc., are not being made as it is seen that ultimately the revenue’s case is based upon the consumption of electricity read with the said loose documents and computer printouts. Based upon the same, proceedings in the present appeal were initiated along with another proceedings in respect of the same appellants alleging clandestine removal of proposing confirmation of the same.

5. It is seen that the identical proceedings initiated in respect of the same appellants resulting in confirmation of demands of more than Rs. 10 crores were considered by the Tribunal and vide its Final Order 50073-50078/2019 dated 22/01/2019, the entire evidence produced by the Revenue was considered and appreciated and the Tribunal came to the conclusion that allegations of clandestine removal, primarily based upon the consumption of electricity read with the statements and the computer printouts, are not proved and accordingly the order was set aside.

6. Inasmuch as the present impugned order is also a part of the same set of investigations, same evidences and identical proceedings. I, by following the above referred decision of the Tribunal set aside the impugned order and allow the appeals of the appellant with consequential relief to the appellant.

(Pronounced in open court on 08.02.2019)

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