Customs, Excise and Gold Tribunal - Delhi
Shiv Shakti Steel Tubes vs Commissioner Of Central Excise on 17 May, 2006
ORDER
S.S. Kang, Vice-President
1. Heard both sides.
2. Appellant filed this appeal against the Adjudication order passed by the Commissioner of Central Excise whereby demand of Rs. 59,79,963/- was confirmed and penalty of the equal amount was imposed on the ground that appellant manufactured and cleared ERW Pipes without payment of duty.
3. Brief facts of the case are that in the manufacture of 1st November, 1999, it was found that appellants were clearing the goods to Jagdamba Steel Traders which is proprietary concern of Shivji Ram who is also partner in appellant's Firm. During the search of premises of Jagdamba Steel Traders, Note Book was recovered which was written by one Ram Kumar in charge of the Godown. Shri Ram Kumar in his statement specifically mentioned that he made entries in the Note Book relating receipt of pipes from Shiv Shakti Steel Tubes factory and other manufacturer and made entries in details, the material received, Vehicle number and weight and the details, such as from whom the goods were received. He also disclosed that the pipes coming in the godown from appellant are received without any documents. The statement of Shivji Ram, proprietor of Jagdamba Steel Traders was also recorded where he admitted his connection with the appellant Firm, as partner, and also admitted that he is running proprietor Firm in the name Jagdamba Steel Traders at Delhi. In his statement also admitted, that Shri Ram Kumar was in charge of the godown. He also admitted that the appellants were clearing the goods in their own truck and the goods received at Jagdamba Steel Traders were without any invoice and the payment is made in cash, which is obtained from sale by Jagdamba Steel Traders. On the basis of entries made in the Note Book recovered from the premises of trading Firm, a show cause notice was issued for demand of duty. The Adjudicating authority after affording an opportunity of hearing to the appellant confirmed the demand and imposed the penalties.
4. The contention of the appellant is that whole demand is based on the Note Book prepared by Shri Ram Kumar, in charge of the godown and he was not produced for cross-examination. Therefore, the demand is not sustainable. It is also contended by the appellant that Shivji Ram Proprietor of Jagdamba Steel Traders retracted from his statement, therefore, his statement cannot be made basis for confirming the demand. There is no other evidence on record to show that appellant cleared the goods without payment of duty. Even on verification, no discrepancy was found in their record and stock. Appellant relied upon the decision of the Tribunal in the case of Jagatpal Prem Chand Ltd. v. Commissioner of Central Excise, Delhi, reported in 2004 (178) E.L.T. 792 (Tri.-Del.) to submit that demand cannot be upheld on the basis of a statement of person who had not been allowed to cross-examination by the Adjudicating authority.
5. The contention of the Revenue is that Shivji Ram is the partner of the manufacturing Unit (Appellant) and he is the proprietor of Jagdamba Steel Traders. The Diary recovered from Jagdamba Steel Traders shows the receipt of pipes from the appellant. This fact is admitted by Shri Ram Kumar, in charge of the godown. Shri Shivji Ram and in charge of the godown admitted that pipes received from the appellant were without payment of duty. The Revenue also submitted that Shivji Ram, Proprietor in his statement disclosed the Bank account number and admitted that the same sale of the goods which were cleared without any document is deposited in that account. On verification, it was found that Bank account was opened in the name of one Balbir employee of Shivji Ram. The Revenue also relied upon the statement of Pankaj Kumar who is Dharam Kanta operator and in his statement submitted that the goods which are received by Jagdamba Steel Traders are being weighed at his Dharam Kanta and he also produced the records of weighment at his Dharam Kanta. In his statement he explained that records were preserved, as he has to recover the charges of weighment from the appellant. In these circumstances the contention is that demand is rightly made.
6. We find that appellant's main argument is that Shri Ram Kumar in charge of the godown of Jagdama Steel Traders was not produced for cross-examination. The Adjudication authority issued summons but he was not available at the given address. The documentary evidence i.e. Note Book which were recovered from the premises of Jagdamba Steel Traders shows that the receipt of the goods from the appellant which was duly entered in with details such as weight, size, supplier and the truck number mentioned in the Diary is also belongs to the appellant. The disclosure made by Shri Ram Kumar is further collaborated by the statement of Shri Shivji Ram who is the partner in appellant Firm and the proprietor of Jagdamba Steel Traders where he disclosed certain facts which were in his personal knowledge i.e. Bank account opened in the name of his employee Balbir. Balbir is getting only Rs. 2000/- per month and the deposits made at the time of opening of the Bank account, is more than 4 lakhs. The appellant contended that Shri Shivji Ram retracted from his statement. We have gone through the retraction which is only to the extent he was forced to write the statement. Shri Shivji Ram is a B.Com. and it cannot alleged that he is an illiterate man and succumbed to pressure of Revenue. He is a partner in manufacturing Unit and in the statement he disclosed certain facts, which were only in his knowledge. The disclosure made by Shivji Ram is further collaborated by Balbir his employee in whose name account is opened. It is also come on record that goods received at Jagdamba Steel Traders was being weighed at one Dharam Kanta and payment is being made by Shiv Shakti Steel Tubes, the present appellant. It is also come on record that the goods were cleared by Jagdamba Steel Traders without any documents. Appellant relied upon the decision of the Tribunal in the case of Jagatpal Prem Chand Ltd. v. Commissioner of Central Excise, Delhi-I (Supra). We find that the facts of the case are different as in that case the statement of un-related person was relied upon for confirming the demand. In the present case Shivji Ram is a partner in manufacturing Unit and proprietor of Jagdamba Steel Traders from whose premises the documents were recovered, showing the clearance of the goods. In these circumstances, we find no merit in the contention of the appellant. The appeal is dismissed.