Custom, Excise & Service Tax Tribunal
C.C.E., Kanpur vs Universal Rubber Industries on 1 January, 2014
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No.2, R.K.Puram, New Delhi Date of hearing/decision: 1.1.2014 Court No.II Central Excise Appeal No.3039 of 2005 with Cross-Objection No.83 of 2006 Arising out of the order-in-appeal No.247-CE/APPL/KNP/2005 dated 30.4.2005 passed by the Commissioner (Appeals), Customs & Central Excise, Kanpur. C.C.E., Kanpur .. Appellant Vs. Universal Rubber Industries . Respondent
Appearance:
Present Shri Sanjay Jain, A.R. for the appellant-Revenue None for the respondent Coram: Honble Mr. D.N. Panda, Judicial Member Honble Mr. Manmohan Singh, Technical Member Final Order No. Per D.N. Panda:
None present for the respondent even though notice has gone in this case nor there is adjournment application.
2. When investigating team intercepted a truck bearing registration No.UP-32A-0145 in the morning hours of 14.9.99 near Bhaunti (Kalpi Road), Kanpur, they found that the said truck was going to Lucknow carrying rubber rolls manufactured by the Universal Rubber Industries (URI) accompanied by the invoice No.97 dated 12.9.99, No.98 dated 12.9.99 and 99 dated 9.9.09. The date on the invoices created doubt in the minds of the investigating team in view of succeeding invoice No.99 anti-dated while invoice No.97 and 98 are of succeeding date They found that goods were mis-declared as rubber rolls although those were tread rubbers. Such mis-declaration was to enjoy SSI exemption since rubber roll is entitled to that exemption.
3. Sequel to the above outcome of investigation, the team further examined the records of M/s New Varanasi Transport Corporation (NVTC). So also the records of the respondent manufacturer. The team also extended their investigation to the buyers of the goods whose names appeared in para 8 of the adjudication order and they were confirmed to be buyers of tread rubbers. They stated that the respondent was engaged in the manufacture of tread rubber.
4. The investigating authority also examined the partner Shri D.S. Chauhan and found out that the invoices numbered as serial Nos.97 to 99 were all fabricated one since record of the respondent showed that invoices upto serial No.96 was only issued till visit by the investigating team on 14.9.99. That established that the invoices bearing serial No.97 to 99 did not form part of the record maintained by the respondent. That lent support to the inference of investigation on that the offending invoices were fabricated documents used for transport of the tread rubber in the guise of rubber rolls.
5. The invoices bearing Serial No.97 to 99, carried signature of D.S. Chauhan which was matched with the signatures appeared in the invoice book detected during search. Similarly panchnama drawn in the premises of the Goodwill Rubber of Lucknow showed that the invoices recovered from its premises also carried signature of D.S. Chauhan. The statement recorded by investigation from the buyer of goods proved the fact that M/s NVTC was only transporter which transported goods to them. That established vital link between the respondents and the buyers of the tread rubber. Investigating authority also noticed that all the 5 parties mentioned in para 8 of the adjudicating order were engaged in tyre retreading and they purchased tread rubber only from the respondent. Buyers of tread rubber stated that one Shri Ramesh Gupta used to take order on behalf of the respondent from them and upon arrival of goods at their premises, Shri Gupta used to take back the documents from them and destroy the same. Such modus operandi of the respondent demonstrated that it had cleared tread rubber without rubber rolls being cleared.
6. The respondent was proved to be an evader of the duty mis-declaring the description of goods followed by fabrication of invoices and destruction of the documents accompanying such mis-declared goods. Investigating authority brought out its case succinctly and undisputedly proved that respondents used to book tread rubber to different parties through the only transporter M/s NVTC as a convenient mode to suppress entire fact without being known to others. Material facts and evidence on record establishes willful mis-declaration with intention to evade duty systematically destroying the documents which has caused serious prejudice to the interest of revenue. Enquiry to the transporter provided delivery of mis-declared goods verified from the booking register. The goods consigned were the tread rubber and the respondent failed to demolish allegation of investigation.
7. Ld. Adjudicating authority clearly brought out in paragraph 11 of the adjudication order as to how he was guided by various parties and plethora of l evidence gathered by the investigating authority. Allegation remained uncontroverted.
8. Ld. Commissioner (Appeals) without looking to the aforesaid vital pieces of evidence and material facts on record came to the conclusion that there was no proof of huge production of tread rubber in the factory of respondent. An appellate authority is not expected to presume certain thing which was not real brushing aside the evidence gathered by investigation. He is not expected to draw any inference without evidence. His presumption of no production of huge quantity of tread rubber is of no consequence when fraud surfaced. Tread rubber had moved from the factory of the respondent through the fabricated invoices as well as through the consignments transported by aforesaid truck and Consignment register of the transporter as well as version tyre retreaders proved deliberate mis-declaration of nature of goods by respondent. Thus Ld. Commissioner (Appeals) proceeded to arrive at the erroneous conclusion to grant sanction to the evasion without looking to the governing facts and attendant circumstances. Therefore, we uphold the adjudication and set aside the appellate order allowing the appeal of the Revenue.
8. Cross-Objection is for no fresh ground, except supporting the appellate order. Accordingly that is dismissed. (Dictated and pronounced in the open Court) (D.N. Panda) Judicial Member (Manmohan Singh) Technical Member scd/ 3