Custom, Excise & Service Tax Tribunal
) M/S. Slotco Steel Products Pvt. ... vs Cce, Delhi on 19 March, 2010
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No. 2, R.K. Puram, NEW DELHI COURT NO. 1 E/STAY/1456 IN & CENTRAL EXCISE APPEAL NO.1408 OF 2009 AND E/STAY/2252/2009 IN AND CENTRAL EXCISE APPEAL NO. 2182 OF 2009 [Arising out of Order-in-Original No. 07/2009 dated 30.1.2009 passed by the Commissioner of Central Excise-1, New Delhi] Dated of hearing: 19th March, 2010 For approval and signature: Honble Mr. Justice R.M.S. Khandeparkar, President; Honble Mr. Rakesh Kumar, Member (Technical) 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 would 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? 1) M/s. Slotco Steel Products Pvt. Limited, 2) Shri Subhash Khattar Appellants Vs. CCE, Delhi Respondent
Appearance:
Shri B.L. Narasimhan, Advocate for the appellants;
Shri Nitin Anand, Authorised Representative (SDR) for the Revenue Coram:
Honble Mr. Justice R.M.S. Khandeparkar, President;
Honble Mr. Rakesh Kumar, Member (Technical) ORDER NO._________________ dated __________ Per Justic R.M.S. Khandeparkar:
Heard. We have also perused the written submissions filed by both the parties.
2. These appeals involve common questions of law and facts and, therefore, were heard together, along with stay applications therein in terms of order passed by the Tribunal on 4.9.2009, and are being disposed of by this common order.
3. The appeals arise from order dated 30.1.2009 passed by the Commissioner, Central Excise, Delhi-I confirming the demand of Rs. 1,48,60,803/- along with interest thereon and penalty of equal amount besides penalty of Rs. 50 lakhs against the Director, while appropriating sum of Rs. 28 lakhs voluntarily deposited vide TR-6 challan in the course of investigation. The appellants are engaged in manufacture and trading of excisable goods i.e. Slotted Angles, Shelves, Cable Trays and other Sheet Fabricated goods classifiable under Chapter heading 7216, 7308 and 9403 respectively of the first Schedule to the Central Excise Tariff Act, 1985. The appellants were not registered at the relevant time under the Central Excise Act and rules made thereunder.
4. In the course of patrolling in Narain Industrial area on 27.12.2005 the officers of preventive branch of Delhi Commissionerate spotted one loaded truck bearing registration No. HR-47-5887 having been parked outside factory premises of the appellants. On inquiry the driver of the truck informed that it was loaded at the appellants premises and produced the documents which disclosed bill pertaining to one Surya Enterprises, R-80, Vani Vihar, Uttam Nagar, New Delhi, issued in the name of Bharat Electricals, C/o VIRSA, IT Park, Tower-C, IInd Floor, Chandigarh but could not produce any document evidencing loading of goods at appellants factory. Pursuant to the further investigation carried out, the same disclosed certain irregularities committed by the appellants which warranted demand of duty for the period from 2002-03 to 2005-06 and consequently show cause notice came to be issued on 17.10.2009 on conclusion of the investigation. In the course of investigation various statements were recorded apart from collection of other documentary evidences.
5. The appellants contested the proceedings which culminated in the impugned order.
6. While assailing the impugned order it is sought to be contended on behalf of the appellants that the demand has been confirmed solely on the basis of uncorroborated statements of certain suppliers and their employees. It is the case of the appellants that though the appellants had requested for cross-examination of all those witnesses none of them were presented for cross-examination. Being so, the adjudicating authority was not entitled to rely upon such uncorroborated documentary evidence. It is the case of the appellants that there is no proof of any excess manufacture and clandestine removal of the finished goods under the guise of trading by the appellants and the findings in that regard are not borne out from the record.
7. According to the appellants the witnesses whose testimony has been relied upon failed to answer the summons and present themselves for cross-examination, nor the department took any step to ensure their presence and, therefore, no sanctity or credence could have been attached to their statements. The Commissioner, therefore, ought to have adjudicated the show cause notice without relying opon the said statements. By relying upon those statements, there has been clear violation of principles of natural justice and the impugned order based on those statements is in total defiance of the settled law.
8. The charge of clandestine removal requires strict proof and the onus in that regard was not discharged by the department and, therefore, according to the appellants the impugned order is based on assumptions and presumptions without any concrete proof or tangible and corroborative evidence in support of the allegations.
9. According to the appellants the fact that the suppliers had actually sold the traded goods is evident from the fact that the suppliers were registered with Sales Tax/VAT department as the manufacturers and traders of steel items and had paid sales tax on their sales. Further, the very similar supplier have also made sales to other independent third parties of the very goods is also evident from the record. Several suppliers had shown the appellants as sundry debtors in their books of account and some suppliers are also reflected as sundry creditors in appellants books of accounts and, therefore, the statements of the suppliers contrary to those materials ought to have been rejected outright.
10. Referring to the statements of Shri Mahesh Kaushik it is sought to be contended that he still continues to have business with the appellants and that shows that the sales affected by his firm to the appellants were above board and genuine sales contrary to the claim made by him in his statement. Besides some of the suppliers have also confirmed that they have actually made sales of slotted angles/channels, etc. to the appellants.
11. The statutory record maintained by the appellants disclose volume of the manufacturing sales and trading sales by the appellants and the same is also reflected from the balance sheet for the respective years. The returns filed by the appellants with the Sales Tax/VAT department were never disputed. During the relevant period the appellants had paid the sales tax to the tune of Rs. 58,58,434/-.
12. The payments for all purchases by the appellants were done by way of crossed cheques and there is no allegation that they had paid or received cash from any supplier or purchaser of the final product. The very fact that all the transactions of the appellants were through proper banking channels, it reveals that transactions were above board and genuine.
13. On the other hand it is the case on behalf of the department that Shri Subhash Khattar, Managing Director of the factory has admitted that the goods found in the truck referred to above had been manufactured and loaded from his factory but could not explain the non-availability of invoice/bill of the party with the driver who was transporting the goods. He also failed to given any explanation regarding the bill of Surya Enterprises which was accompanying the goods. It is further contention on behalf of the respondent that in the course of investigation it was claimed by the appellants that they were also engaged in trading similar products and their go-down in that regard being located on B-66, Narain Industrial Area. However, all the invoicing of the trading items was being done from their factory. Scrutiny of bills issued regarding trading of goods during the period 2001-02 onwards revealed that there was no mention of either the mode of transportation or the vehicle number used in the transportation of the goods in relation to any of the bills of those traders who had claimed that they were supplier of the goods to the appellants. The investigation conducted in the matter revealed that some of the parties who were claimed to be the suppliers were never in existence. Some of the parties were dealing in manufacture and trading of unrelated items such as Tawa, Balti, Hawan kund, Wooden Furniture, Chit Fund business, Automobile parts & Light poles, etc. Some of those parties had no infrastructure to manufacture items like slotted angles/shelves, cable tray, etc. No record such as the invoices of raw material, register of finished goods, register and other related records pertaining to the manufacture/trading were disclosed to have been maintained by those parties. Some of those units had residential addresses. Some of the parties name as supplier were supplying only iron sheets whereas description of the items supplied were changed as per partys request.
14. It is further case of the department that the investigation about SSP Manufacturing & Trading Corpn., a manufacturing unit revealed that it operated from B-66, Narain Industrial Area which were the premises owned by Shri Subhash Khattar and that trading go-down of the party was also located in the same premises. Shri Subhash Khattar admitted in his statement that SSP Manufacturing & Trading Corpn. is a proprietorship firm owned by Shri Ashok Arora who is the brother of shri Bhushan Arora, one of the directors of the appellant firm. As the appellants and SSP Mfg. & Trading Corpn. were manufacturing similar products, their consumption of electricity over a period of last 5 years was verified for comparison wherein it was revealed that electricity consumption of SSP Mfg. & Trading Corpn. was extremely low as compared to that of the appellants whereas the actual production was same. After examination of respective balance-sheet of both the firms it was also revealed that the ratio of wages of manufacturer, job work expenditure and machinery installed was not found comparable. Scrutiny and comparison disclosed that the appellants had suppressed their production which they had sown in the account of SSP Mfg. & Trading Corporation.
15. As regards the contention regarding cross-examination sought to be raised by the appellants, it is the submission on behalf of the respondent that pursuant to the request of cross-examination 15 persons were summoned for the same, however, they failed to appear before the authorities. Thereafter, there was no further request for afresh summons to those persons and the appellants specifically requested that the matter be decided dehors the statement of witnesses. Thus according to the respondent the appellants themselves choose to proceed with the adjudication proceedings without insisting for cross-examination of witnesses and, therefore, it is too late for the appellants to contend about violation of principle of natural justice on that count. It is also submitted that the statements which have been relied upon by the Commissioner as corroborative piece of evidence were never retracted.
16. According to the respondents the sales tax return filed by the traders have no evidencery value as the traders were withdrawing money in cash and giving the same back to the appellants after deducting sale tax/VAT and their commission. Besides this, sales tax return did not indicate that the traders were manufacturers of those items.
17. It is their further case that investigation clearly disclosed that two out of four firms of Shri Mahesh Kaushik were non-existent and two others were merely shops where no manufacturing facility was available, besides he was trading in items like Tawa, Balti, etc. Investigation has also revealed that the some of the firms claimed to be supplier to the appellants were not even in existence at all.
18. While contending that the evidence in adjudication proceedings need not to be like the one in criminal cases and the findings should be on the basis of preponderance of probability, attention is sought to be drawn to the decision in the case of Roopchand Jain vs. Collector of Customs (Preventive), Calcutta, reported in 1996 (88) ELT 335 (Cal.) and Santhanam vs. Collector of C. Excise & Customs, Madurai-2, reported in 1995 (79) ELT 564 (Mad). It is further submitted on behalf of the respondent that since no record regarding transaction was maintained by the appellants, the department was constrained to rely upon other evidence including the statements.
19. It is apparent that the appellants are challenging the impugned order essentially on the ground that the same is based on the statements of witnesses which have not been subjected of being tested by way of cross-examination of the deponent. In other words, it is a case of the appellants that the deponents statement cannot be relied upon unless the deponent is cross-examined and in this case no such opportunity was made available to the appellants.
20. It is not in dispute that pursuant to the request by the appellants for cross examination of the deponents they were summoned by the adjudicating authority. However, none of them appeared or made themselves available for cross-examination by the appellants. It is also not in dispute that pursuant to the failure of those persons to appear before the adjudicating authority pursuant to the summons issued to them, the appellants thereafter did not insist for making those deponents available for cross-examination. Instead, the appellants requested for ignoring their statements while deciding the matter. In other words, merely because there was failure on the part of the deponents to answer to the summons issued by the adjudicating authority at the instance of the appellants, the appellants themselves did not pursue their right to cross examine those witnesses by submitting to the authorities that those statements be discarded.
21. Section 9D of the Central Excise Act, 1944 deals with the relevancy of the statement which are recorded under the said Act. Sub-section (1) thereof provides that the statement made and signed by a person before any Central Excise officer of a gazetted rank during the course of any inquiry or proceedings under the said Act shall be relevant, for the purpose of proving, in any prosecution for an offence under the said Act, the truth of the facts which it contains, -
(a) when a person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable; or
(b) when a person who made the statement is examined as a witness in the case before the Court and the Court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interest of justice.
Sub-section (2) of Section 9B specifically provides that the provision of sub-section (1) shall, so far as may be, apply in relation to any proceedings under the said Act, other than proceeding before a Court, as they apply in relation to a proceedings before a Court.
22. The High Court of Delhi in J.K. Cigarettes Ltd. vs. Collector of Central Excise, reported in 2009 (242) ELT 189 (Del.) had occasion to deal in detail with the issue relating right to cross-examine of the deponent by the assessee. Relying upon the decision of the Apex Court in CCE vs. Duncan Agro Industries, reported in 2000 (120) ELT 280 (S.C.) wherein it was held that We hold that a statement recorded by Customs Officers under Section 108 of the Customs Act is admissible in evidence. The court has to test whether the inculpating portions were made voluntarily or whether it is vitiated on account of any of the premises envisaged in Section 24 of the Evidence Act held thatthough it cannot be denied that the right of cross examination in any quasi-judicial proceeding is valuable right given to the accused/noticee, as these proceedings may have adverse consequences to the accused, at the same time under certain circumstances, this right of cross examination can be taken away. Having held so, the Honble High Court analysed the Section 9D as under:-
Section 9D of the Act stipulates following five circumstances, already taken note of, under which statements previously recorded can be made relevant. These are :-
(a) when the person who had given the statement is dead;
(b) when he cannot be found;
(c) when he is incapable of giving evidence;
(d) when he is kept out of the way by the adverse party; and
(e) when his presence cannot be obtained without an amount of delay or expense, which the Officer considers unreasonable.
Honble High Court thereafter held thus:-
Interestingly, the learned senior counsel for the petitioners did not join the issue that the aforesaid circumstances are not exceptional circumstances. They are the circumstances which naturally would be beyond the control of the parties and it would not be possible to produce such a person for cross-examination who had made a statement on earlier occasion. The provisions under Section 9D of the Act are necessary to ensure that under certain circumstances, as enumerated therein, viz. if the witness has been won over by the adverse party or is avoiding appearance despite several opportunities being given. The rationale is that decision making in a case cannot be allowed to continue in perpetuity. These provisions are based on the Doctrine of Necessity. It provides for relevancy of statements recorded under Section 14 of the Act dispensing with or without the opportunity for testing the truth of such evidence by cross-examination. For, when a person is dead or incapable of giving evidence or cannot be found, no better evidence can be had in the circumstances than the statement tendered by witnesses before a quasi-judicial authority.
The safeguards which are enumerated in the provision under Section 32 of the Evidence Act are essential as the provision provides for an exception to the rule of exclusion of hearsay evidence, while proving for relevancy of even direct oral evidence of the fact under enquiry, which otherwise is not admissible, to ensure that there is no miscarriage of justice. Similarly, provisions under Section 9D provide for relevancy of statements recorded under Section 14 of the Act, under certain circumstances, in criminal as well as quasi judicial proceedings, to meet the ends of justice.
23. Bombay High Court while dealing with the similar issue in the case of Gyan Chand Sant Lal Jain vs. UOI, reported in 2001 (136) ELT 9 (Bom.) and taking into consideration the applicability of concept of principles of natural justice in that regard quoted para 76 of Halsburys Law of England, Vol. I (4th Edition) which reads thus:-
Natural justice does not impose on administrative and domestic tribunals a duty to observe all the technical rules of evidence applicable to proceedings before courts of law. Members of tribunals may be entitled to draw on their specialized or local knowledge of the type of, issue before them in order to supplement as well as evaluate evidence to find facts by inquisitorial methods, and inspections and to obtain information from other persons; but it will generally be a denial of justice to fail to disclose to a party specific material relevant to the decision if he is thereby deprived of any opportunity of comment on it. The Honble High Court observed thus:-
In other words, it seems to be a fairly settled position in law that it is not necessary that persons whose statements have been previously recorded must be examined in the presence of the party against whom such previous statements are intended to be used. The rules of natural justice do require that their previous statements must be made available to the party against whom they were intended to be used and such party must be given a fair opportunity to explain the same or comment on them. What would amount to fair opportunity would depend upon the facts and circumstances of each case. It was also held by the Bombay High Court therein that:-
Formal cross-examination may be a part of procedural justice but that does not mean that the content of natural justice excludes the right of cross-examination. As stated earlier, the rules of natural justice do cast an obligation on the Tribunals that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain or comment on it and what is fair opportunity must depend upon the facts and circumstances of each case. Mere assertion that the information received by the Tribunal is false or that the informant is a liar and an unreliable person may not satisfy the Tribunal about the truth or veracity of the assertion and it must be open to such party to demonstrate the truth or veracity of his assertion by cross-examining the informant. The Bombay High Court thereupon ruled thus:-
no obligation is cast upon any Tribunal exercising quasi-judicial function to keep witnesses present and offer them for cross-examination unasked, provided, of course, their statements already recorded behind the back of the party against whom they are to be used are made available to such party and it would be for the party against whom they are intended to be used to make a specific request to call those witnesses for cross-examination. In the absence of such specific request being made it would not be possible for such party to make a grievance that the principles of natural justice have been committed breach of.
24. The Bombay High Court in a recent decision in the matter of Sailash Amulakh Jogani vs. UOI, reported in 2009 (241) ELT 348 (Bom.) taking note of the fact that none of the persons present at the office premises at the time of the seizure of the goods could satisfactorily explain from whom the diamond in question were purchased in spite of the fact that the particulars regarding the sellers were exclusively within the special and peculiar knowledge of those persons held that in those circumstances, the department could not prove and was not expected to prove the said fact. In view of the non-disclosure of facts which were within the special knowledge of the persons from whom the diamonds were seized, the burden to prove that the diamonds were smuggled which undoubtedly rested with the department was alleviated.
25. The Apex Court in Surjeet Singh Chhabra vs. UOI, reported in 1997 (89) ELT 646 (S.C.) while dealing with the similar issue held that when the petitioner seeks for cross-examination of witnesses who have said that the recovery was made from the petitioner, necessarily an opportunity requires to be given for the cross-examination of the witnesses as regards the place at which recovery was made. But in view of confession made by the petitioner the same was binding upon him and, therefore, in such facts and circumstances failure to give him opportunity to cross-examine the witnesses would not violative of principle of natural justice. It was also ruled that the Customs officials are not police officers. The confession though retracted is an admission and binds the petitioner.
26. Relying upon the decision of the Apex Court in Surjeet Singh Chhabra case (supra) this Tribunal in Jagdish Shanker Trivedi vs. Commissioner of Customs, Kanpur 2009 (194)ELT 290 (Tri.-Del.) held that admission made by an assessee binds him and, therefore, failure to give him the opportunity to cross-examine the witnesses was not violative of principles of natural justice. It was specifically held that principles of natural justice do not require that in matters like this, persons who had given information should be allowed to be cross-examined by the co-noticees on the statements made before the customs authorities. If cross-examination is to be allowed as a matter of right then in all cases of conspiracy and joint dealings between the co-noticees in the commission of the offences in connection with the contraband goods, they can bring about a situation of failure of natural justice by a joint strategic efforts such co-noticees by each one refusing to be cross-examined by resorting to Article 20(3) of the Constitution and simultaneously claiming cross-examination of the other co-noticees.
27. Justice Tulzapurkar, speaking for the Bench of Bombay High Court in Gyan Chand Sant Lal Jain vs. Union of India reported in 2001 (136) ELT 9 (Bom) held that no obligation is cast upon any Tribunal exercising quasi-judicial function to keep witnesses present and offer them for cross-examination unasked provided, of course, their statements already recorded behind the back of the party against whom they are to be used are made available to such party and it would for the party against whom they are intended to be used to make a specific request to call those witnesses for cross-examination. In the absence of such specific request being made it would not be possible for such party to make a grievance that the principles of natural justice have been committed breach of. In fact, while holding so the Bombay High Court had also reiterated the law laid down by the Apex Court in the matter of The State of Maharashtra vs. Babulal Kriparam Takkamore reported in 69 Bom. L.R. 544, wherein it was held by the Apex Court that an administrative or quasi-judicial order based on several grounds, all taken together, cannot be sustained if it be found that some of the grounds are non-existent or irrelevant and there is nothing to show that the authority would have passed the order on the basis of the other relevant and existing grounds. On the other hand, an order based on several grounds some of which are found to be non-existent or irrelevant, can be sustained if the Court is satisfied that the authority would have passed the order on the basis of the other relevant and existing grounds, and the exclusion of the irrelevant or non-existing grounds could not have affected the ultimate opinion or decision.
28. In fact, the Apex Court in Surjeet Singh Chhabra vs. U.O.I. reported in 1997 (89) ELT 646 clearly held that Customs officers are not police officers and admission made before them, though retracted, binds the deponent.
29. Bearing in mind the law laid down in above decisions and applying the same to the facts of the case in hand, it is apparent that the adjudicating authority did issue summons to the witnesses whose statements were recorded and whom the appellants had desired to cross-examine in relation to those statements. However, those witnesses failed to appear before the authorities. As already pointed out above undisputedly this was to the knowledge of the appellants and there was no efforts made on the part of the appellants to insist for cross-examination of those witnesses and/or to insist for their presence for cross-examination. Instead the appellants themselves choose to make a submission to discard the statements of those witnesses and to decide the matter ignoring those statements. It is not a matter of right for any assessee to contend that the statements of witnesses should be discarded. His right is only to insist for cross-examination of the witness. Even in cases where the presence of the witness cannot be secured on account of delay, the authority is not forbidden from relying upon the statement of such witness which is apparent from Section 9D of the said Act. In the case in hand, since the appellants themselves choose not to insist for presence of witnesses and consequently for cross-examination of those witnesses, as rightly submitted on behalf of the respondent, it is too late in the day for the appellants to contend that there was failure on the part of the respondent in not presenting witnesses for cross-examination. If the party itself chooses to forgo its own right either by way of some positive act in that regard or even by failure to take appropriate step to ensure exercise of such right, the party then is not entitled to blame the others and lament of failure of principle of natural justice. In the facts of the case, there was no obligation cast upon the adjudicating authority to issue fresh summons to the witnesses unless asked for by the appellants. Undisputedly no step in that regard was taken by the appellants. Being so bearing in mind the law laid down by the Apex Court, Delhi High Court and the Bombay High Court, there is no substance in the contention of the appellants about violation of principles of natural justice.
30. It is also pertinent to note that the statement of Shri Subhash Khattar, Managing Director of the appellant company who is authorized signatory of the appellant has clearly admitted certain relevant facts which clearly lend support to the charge of clandestine removal of the goods. In view of admission on the part of the Managing Director of the appellant which find corroboration from the other materials on record including the statements of witnesses, there is hardly any scope for interference in the findings arrived at by the learned Commissioner in the impugned order.
31. It is rightly pointed out by the departmental representative that Shri Mahesh Kaushik had admitted that no such goods were being manufactured in his firm and the trading bills were issued without actual supply of goods. He has also admitted that the party was making payments by cheques and that after deduction of sales tax and another taxes, the balance amount was returned to the party in cash after withdrawing the money from the bank. Similarly, Shri Harish Dalmia has stated in his statement that they did not have any facility and infrastructure for manufacture of such items and they were issuing bills without actually selling or transporting the material in terms of the bills. Modalities of cheque payment and withdrawal of amount from the bank and return thereof to the party as stated by Shri Mahesh Kaushik has also been confirmed by this witness. Shri Jagmohan Agarwal has admitted in his statement that he was not carrying any manufacturing activity in respect of items in question and he was in the business of selling iron sheets to the party and descriptions in the invoices were incorrectly stated at the request of the party. Shri Vijender Singh has also admitted that he had issued bills without supply and manufacture of the items mentioned in the bills and for that purpose he was getting fixed commission from the party.
32. Undisputedly the statements of supplier disclose sufficient evidence in support of the case put forth by the respondent against the appellants. It is the case of the appellants themselves that the statements of suppliers are the bases for arriving at the findings adverse to the appellants. Only objection on the part of the appellants is that those statements were not subjected to verification by way of cross-examination. As already observed above, absence of cross examination is entirely on account of failure on the part of the appellants to take appropriate step to exercise the said right.
33. In any case as rightly pointed out on behalf of the respondent the overall investigation clearly discloses clandestine manufacture and removal of the excisable goods with intention to evade excise duty. The records also disclose that many of the suppliers were mere traders in totally different products unconnected with the product in which the appellants were dealing during the relevant period. The investigation also revealed that the appellants had suppressed their production which was that shown in the account of M/s. SSP Trading and Manufacturing Co. a proprietary firm owned by Shri Ashok Arora who is the brother of Shri Bhushan Arora, the director of the appellant firm.
34. The contention that Shri Mahesh Kaushik continues to have business with the appellants and, that therefore, the same reveals the sales affected by his firm to the appellants being genuine is totally devoid of substance. The records reveal that two of the firms of Shri Mahesh Kaushik were not even in existence and two others were merely shops trading in items like Tawa, Balti, etc., during the relevant period. Merely because during subsequent year Shri Mahesh Kaushik had some business transactions with the appellants that itself would not establish similar transaction during the relevant period in view of the materials on record which are sufficient to disprove the claim of the appellants.
35. As regards the contention about bank transactions and the same would disclose the genuineness thereof the evidence brought on record by the department discloses that so called suppliers were withdrawing the money from the bank in cash and returning the same to the appellants after deducting sales tax and their commission. This apparently disclosed manipulation of records by the appellants to suit to their intention to evade duty.
36. Taking into considerations all the facts and materials on record we do not find any case having been made out for interference in the impugned order.
37. The authority below having analysed all the materials in proper perspective and the findings arrived at being clearly borne out from the records, they warrant no interference.
38. The appeals and the applications, therefore, fail and are hereby dismissed.
(JUSTICE R.M.S. KHANDEPARKAR) PRESIDENT (RAKESH KUMAR) MEMBER (TECHNICAL) RK 24