Custom, Excise & Service Tax Tribunal
Commissioner, Central Excise, Lucknow vs (1) M/S. Shyam Traders on 22 March, 2012
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066. BENCH-,,,,,SM Excise Appeal No.E/2279-2280/09-SM [Arising out of Order-in-Appeal No.107-108-CE/LKO/2008 dated 11.05.2009 passed by the Commissioner (Appeals), Central Excise & Service Tax, Lucknow]. Commissioner, Central Excise, Lucknow Appellant Vs. (1) M/s. Shyam Traders (2) Shri Pawan Kumar Gupta, Respondents
Present for the Appellant : Shri.B.L.Soni, DR Present for the Respondent:Ms.Sukriti Das, Advocate Coram: HONBLE MR. D.N. PANDA, JUDICIAL MEMBER Date of Hearing/Decision:26.03.2012 ORDER NO. _______________ DATED:________ PER: D.N.PANDA Ld. Representative for Revenue submits that on interception of a vehicle MAX Pick Up (Regn. No.UP 53T 8867) on 28.11.2006 at about 6.30 A.M., Shyam Bahar Gutkha valued at Rs.6,51,000/- carried therein were found to have been packed in 70 Bags. At that time, 7 invoices issued by Shyam Traders between 23.11.2006 to 26.11.2006 were detected. All those invoices remained undisputed to have been issued by the respondent Shyam Traders. When the Department examined the driver Shri.Iftikhar Ahmad and the helper Shri Sunil Kumar Shukla they could bring out entire story of investigation. It was found by the investigation that although goods were stated to be covered by invoices from 23.11.06 to 26.11.06, that remained in question till interception on 28.11.06 and even thereafter in absence of explanation in that regard from Driver. That caused anxiety to investigation to find out who was the vehicle owner. The second respondent Shri Pawan Kumar Gupta claimed to be the owner of MAX Pick up vehicle. He admitted that he had purchased 70 bags of aforesaid gutkha on the basis of invoice received. When one Shri Awdesh Kumar Manager and Authorised signatory of Shyam Traders (Respondent No.1) was examined, he stated that neither Sunil Kumar Shukla nor the driver were their employees. He did not deny about the interception and finding of impugned goods in the vehicle. Also he stated that respondent had no vehicle for transporting the impugned goods on the date of Purchase. When investigation was further conducted, it was revealed by Shri Pawan Kumar Gupta i.e respondent No.2, the story of parking of the vehicle outside Shyam Traders and waiting for further load for the vehicles. According to him after the vehicle was fully loaded within 4 to 5 days, that moved on 28.11.2006. Entire story of both the respondents were disbelieved by investigation and charge of clandestine removal was made against Shyam Traders and charge of abetment was made against Shri Pawan Kumar Gupta. Consequently, duty demand of Rs.2,19,127/- was raised against Shyam Traders (Respondent No.1) and penalty of Rs.219127 was imposed on the said respondent under Rule 25 of Central Excise Rules, 2002 read with section 11AC of Central Excise Act, 1944. The goods found from the impugned vehicle was seized and provisional release thereof was taken by Shri Pawan Kumar Gupta. For provisional release, redemption fine of Rs.1,50,000/- was imposed on Shri Pawan Kumar Gupta. The vehicle found with impugned goods on interception was also confiscated and redemption fine of Rs.1,00,000/- was imposed. So also penalty of Rs.2,19,127/- was imposed on Shri Pawan Kumar Gupta. Although penalty of Rs.10,000/- each was imposed on Shri Ifthikar Ahmad and Shri Sunil Kumar, they are not in appeal before Tribunal in the present set of appeals in the present set of appeals.
2. Replying to the submissions of Revenue, ld. Counsel Ms. Sukriti Das submits that because full load of goods for the vehicle was not available, after some days of invoices issued, the vehicle waited to transport the Gutkha. The invoices issued are genuine and the goods were meant for transportation on 28.11.2006. The respondent have already paid the duty for which penal consequences should not have followed. Shri Sunil Kumar was not the employee of the respondent Shyam Traders and his statement was unreliable. This is also observed by ld. Commissioner (Appeals). All sales are accounted for and duty has been paid.
3. Head both sides and perused record.
4. There is no dispute about interception of the vehicle on 28.11.2006. At the time of interception, at the preliminary stage itself, it was stated by the persons in the vehicle that they loaded the gutkha from the factory premises of Shyam Traders. That remained undisputed. But Pawan Kumar Gupta (vehicle owner) claimed release of goods paying redemption fine. So also he stated that the vehicle in question belonged to him. He corroborated presence of two persons in that vehicle who were transporting the goods. He did not lead any evidence to show that some other goods were procured by him to fully load the vehicle to move. No consignment note, if any, or the order of the consignors were produced. Detection was made at 6.30 A.M. Normally clandestine removal of goods is made at the early morning or after sunset to escape notice of investigation. Added to this, the statement recorded from Avdhesh Agnihotri who was authorised signatory of respondent No.1 proved cash sale of goods to different parties and issue of both original and duplicate invoices to such buyers without retaining any evidence by M/s.Shyam Traders and that remained un-rebutted. The story of origin of the goods was well established by the statement of Shri Iftikhar Ahmed (Driver) and Shri Sunil Kumar Shukla (helper of the vehicle). Even Shri Pawan Kumar Gupta did not rule out that the goods were not corroborated by appropriate invoices to beissued under law. Some copies of the invoices appearing in page 45 to 58 relied by respondent do not contain name of Shri Pawan Kumar Gupta as buyer of goods. Those are in the name of different persons. Shri Pawan Kumar Gupta made his story unbelievable. So also invoices failed to speak anything about Pawan Kumar Gupta or his vehicle. Neither the goods nor the invoices proved ownership of Shri Pawan Kumar Gupta over offending goods. In absence of any indication about the vehicle number of Shri Pawan Kumar Gupta in the invoices, all the persons aforesaid made the goods to be moved as clandestinely removed. Since Shyam Traders did not disclaim the invoices, it became contributory to the clandestine removal of the goods and duty demand is bound to be confirmed. That is ordered accordingly.
5. When the duty aforesaid is confirmed, levy of penalty on Shyam Traders comes into play. Looking to the other consequence that has followed against both the respondents, the penalty imposed under Rule 25 read with Section 11 AC on Shyam Traders is reduced to Rs.50,000/-. The goods seized being released provisionally and also looking to various consequences suffered by both respondents, redemption fine of Rs.1,50,000/- against the value of goods of Rs.6,51,000/- may be reduced to Rs.60,000/-. That is ordered accordingly.
6. So far as the vehicle under seizure is concerned, that was found to be an instrument to facilitate the clandestine removal of the offending goods so as to flow thereof to market causing prejudice to Revenue. Accordingly, redemption fine of Rs.1,00,000/- imposed for the provisional release of vehicle is reduced to Rs.40,000/- looking to the other consequences suffered by respondents. So far as penalty of Rs.2,19,127/- on Shri Pawan Kumar Gupta is concerned, that is reduced to Rs.50,000/- so as to bring a balance to the various consequences suffered by the respondent in the two appeals.
7. In view of the above, both appeals of Revenue are partly allowed to the extent indicated above.
[Dictated & Pronounced in the open Court].
(D.N.PANDA) JUDICIAL MEMBER Anita