ORDER
S.S. Sekhon, Member (T)
1. This appeal is filed by the Revenue. In spite of notice having been served, the respondents are absent. We proceed to decide the matter after hearing the Ld DR.
2. This case involves, inter alia manufacture & clandestine removal of 22224 Nos. of Electrical Kinetisers without payment of appropriate duty which was established consequent to the interception of a vehicle on 5.9.97 by the officers when the challan and invoice dated 5.9.97 were produced showing the time of removal as 18.15 hrs. where as the vehicle were intercepted at 18.10 hrs. on 5.9.97, far away from the respondent factory. This created suspicions and consequent enquires were launched which resulted in detection of 64 kinetisers in fully manufactured and ready for despatch condition bearing Sr. Nos. sticker on them which were having the same Sr. Nos. as shown, in invoice accompanying the tempo which had been inter alia by the officers. Further, it was noticed that 11 nos. of kinetisers were found on the shop floors ready for despatch condition without any Sr. No. sticker which raised the presumption of use of the same invoice twice for delivery of excisable goods, confirmed by a Sample print out of invoice which shows on the invoice getting printed at the same time in the computer at the premises double number at the premises of an M/s Insight Marketing. Though the quantity tallied with the invoice the sr. nos. did not tally and documents were recover showing stock in excess which were seized. Show cause notice after due enquiry was issue demanding Central Excise duty on 75 kinetisers seized on 5.9.97 and on kinetisers removals earlier were also made liable to penalty confiscation & duty. The Commissioner after hearing the appellant vide the order impugned dropped the proceeding. Revenue aggrieved by this order has filed the present appeals on the grounds –
The Commissioner, while deciding the case relied heavily on the arguments put forth by the assessee arid discussed the various submissions of the assessee at length which is evident from the fact that out of 44 pages, discussion of the case majority of the portion was left for discussion of assessee’s submission and catena of case laws quoted by the assessee. The Commissioner took no lime to discuss the case on detail and the allegations made in the show cause notice and evidences available on record.
The Commissioner has not appreciated the fact that the case was booked by the department on the basis of specific information that the assessee were indulging in clandestine removal of excisable goods without payment of C.Ex duty and without accounting the same by using the same C.Ex invoice twice which was confirmed at the time of interception of vehicle where the assessee was caught red handed with a document mentioning time of removal of goods as 18.15 hrs. when the time of interception by the officers of the department was at 18.10 hrs. The place of interception was 15 minutes away from the factory. It was found that the goods lying in the premises of the assessee was also bearing same serial nos. as mentioned in the invoice used for covering the goods intercepted.
The RG.1 showed NIL balance and thereby proved non-accounting of the said goods.
It is on record that the Sr. No. stickers used on the Electric Kinetisers were generated from their own computer installed at the factory premises. When the computer was re-run and sample print out of the Sr. Nos. of the kind used on the stickers were taken out in presence of Panchas, showed two sets of Sr.Nos having same numbers i.e. 1-1, 2-2 getting printed at the same time. The Commissioner failed to take cognizance of this important piece of evidence.
The Commissioner failed to appreciate the fact that the goods were mainly sold through M/s Insight Marketing, a dummy unit, created by M/s Canon Domestic Appliances. The proprietor of M/s Insight Marketing was the nephew of the proprietor of M/s Canon Domestic Appliances and was paid Rs. 5,000/- per month as salary for acting as proprietor. Most of the goods were sold to M/s Insight Marketing in polyethylene bags and it was further packed in marketable condition by M/s Insight Marketing an sold at higher prices. Further, only small quantities of goods were sold through other dealers such as M/s Canon Domestic Appliances Pvt. Ltd. another related company at the same price and also through M/s Amba Business Centre as cover. In the circumstances the Commissioner ought to have appreciated that M/s Insight Marketing was only an extension of the assessee viz M/s Canon Domestic Appliances and therefore, the wholesale price at which M/s Insight Marketing sold to their customers should have been taken as the correct assessable value as alleged in the show cause notice with sufficient evidences. Shri Moolchand Gandhi, Proprietor of the assessee in his statement dtd. 5.9.97 recorded under Section 14 of CEA, 1944 admitted that double the numbers of kinetisers were removed from his factory by using the same invoice twice. Shri. Jignesh Virchand Chheda, Proprietor of M/s Insight Marketing confirmed the above facts in his statements dtd 8.9.97 and 11.9.97 that he was the proprietor for name sake only and that Shri Hemraj Gangji Cheeda, brother of Moolchand Chheda, Proprietor of the assessee was the person who actually looked after the business.
The specific records recovered from dealers revealed that more than double the quantity of goods received were cleared. It was observed that M/s Indeas unlimited (notice No. 3): had sold 2867 nos. of kinetisers against purchase of 1174 nos. of kinetisers and hence it was clear that there was a clearance of huge nos. of kinetisers without being accounted for as against the quantity received under bills/invoice which confirmed the fact of using same C.Ex. invoices twice for removal of kinetisers from the premises of M/s Canon Domestic applicances.
Commissioner, has not taken cognizance of the fact that the case was based on clandestine removal of excisable goods by the assessee adopting fraudulent means and therefore it should not have been derived by the Commissioner, that the department had not come across any irregularity committed by the assessee, while sending the inputs or receiving the processed goods, and therefore, erred in not relying on the sold evidences on record in respect of such clandestine removal.
As such the said order does not appear to be proper, legal and correct.
3. After considering the order impugned and the grounds taken by Revenue, we are of the opinion that the Commissioner has not considered the material on records and has passed an order which cannot be sustained. We would therefore set aside the order and remand the matter back to the Commissioner. He should give an opportunity of hearing to the noticee and thereafter re-determine the issues and arrive at finding on the grounds as taken by Revenue in this appeal including the defence raised by the noticee in the denova proceeding and pass an order thereafter.
4. Appeal allowed as remand for denova adjudication.
(Pronounced in Court)