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Sairam Steel Pvt. Ltd V/S C.C.E., & S.T., Raipur


Company & Directors' Information:- S A L STEEL LIMITED [Active] CIN = L29199GJ2003PLC043148

Company & Directors' Information:- M M S STEEL PRIVATE LIMITED [Active] CIN = U27109TZ1996PTC006849

Company & Directors' Information:- G. O. STEEL PRIVATE LIMITED [Active] CIN = U27100PB2007PTC031033

Company & Directors' Information:- J M G STEEL PRIVATE LIMITED [Strike Off] CIN = U27105BR1992PTC004985

Company & Directors' Information:- H L STEEL PVT LTD [Active] CIN = U27107AS1992PTC003726

Company & Directors' Information:- K V M STEEL PRIVATE LIMITED [Active] CIN = U29141DL1988PTC031248

Company & Directors' Information:- K STEEL PRIVATE LIMITED [Strike Off] CIN = U27104JH1973PTC000998

Company & Directors' Information:- R. J. STEEL PRIVATE LIMITED [Active] CIN = U28112MH2009PTC193047

Company & Directors' Information:- M M STEEL PRIVATE LIMITED [Active] CIN = U27107MH2001PTC131270

Company & Directors' Information:- B L STEEL PVT LTD [Active] CIN = U51909WB1981PTC034021

Company & Directors' Information:- R K G STEEL PRIVATE LIMITED [Active] CIN = U27109DL2004PTC128852

Company & Directors' Information:- V B STEEL PRIVATE LIMITED [Active] CIN = U28112MH2010PTC211691

Company & Directors' Information:- I B STEEL COMPANY PRIVATE LIMITED [Strike Off] CIN = U28910MH2010PTC211344

Company & Directors' Information:- J S C STEEL PRIVATE LIMITED [Active] CIN = U27106UP2013PTC061568

Company & Directors' Information:- S. M. STEEL PRIVATE LIMITED [Active] CIN = U51101MH2013PTC239811

Company & Directors' Information:- R K P STEEL LTD [Active] CIN = L27109WB1980PLC033206

Company & Directors' Information:- C P STEEL PRIVATE LIMITED [Active] CIN = U27100WB2008PTC127447

Company & Directors' Information:- A. K. J. STEEL PRIVATE LIMITED [Active] CIN = U28112WB2010PTC144880

Company & Directors' Information:- C D STEEL PVT LTD [Under Liquidation] CIN = U27109WB1981PTC034340

Company & Directors' Information:- T M S STEEL PRIVATE LIMITED [Strike Off] CIN = U02710TZ1996PTC007498

Company & Directors' Information:- P M R STEEL PRIVATE LIMITED [Active] CIN = U51102DL2003PTC122675

Company & Directors' Information:- C T STEEL PVT LTD [Active] CIN = U27109WB2005PTC106634

Company & Directors' Information:- P G STEEL PVT LTD [Strike Off] CIN = U24111AS1998PTC005409

Company & Directors' Information:- A AND S STEEL PRIVATE LIMITED [Active] CIN = U63090DL1987PTC027835

Company & Directors' Information:- J S STEEL PRIVATE LIMITED [Active] CIN = U52190CT1978PTC001432

Company & Directors' Information:- U M STEEL PRIVATE LIMITED [Strike Off] CIN = U27209TN1986PTC013670

Company & Directors' Information:- L N STEEL PRIVATE LIMITED [Active] CIN = U27310WB2007PTC118206

Company & Directors' Information:- K. D. W. STEEL PRIVATE LIMITED [Active] CIN = U28910UP2011PTC043976

Company & Directors' Information:- R. N. STEEL PRIVATE LIMITED [Active] CIN = U27100WB2007PTC116588

Company & Directors' Information:- P M STEEL PRIVATE LIMITED [Active] CIN = U27105MP1982PTC001915

Company & Directors' Information:- M R STEEL (INDIA) PRIVATE LIMITED [Active] CIN = U27100TG2013PTC088808

Company & Directors' Information:- C K STEEL PVT LTD [Active] CIN = U29150WB1975PTC030259

Company & Directors' Information:- K STEEL & COMPANY PVT LTD [Strike Off] CIN = U51909WB1991PTC053960

Company & Directors' Information:- N S STEEL PVT LTD [Strike Off] CIN = U27106PB1980PTC004266

Company & Directors' Information:- R C STEEL PVT LTD [Strike Off] CIN = U28112AS1980PTC001811

Company & Directors' Information:- P D STEEL PRIVATE LIMITED [Strike Off] CIN = U74899DL1989PTC038426

Company & Directors' Information:- A K STEEL PVT LTD [Strike Off] CIN = U99999DL1961PTC003566

Company & Directors' Information:- H S P STEEL PRIVATE LIMITED [Strike Off] CIN = U27100MH2013PTC242983

Company & Directors' Information:- D H STEEL PRIVATE LIMITED [Strike Off] CIN = U27109RJ2012PTC039742

Company & Directors' Information:- R A STEEL PRIVATE LIMITED [Active] CIN = U51909MH2014PTC253625

Company & Directors' Information:- N. V. STEEL PRIVATE LIMITED [Strike Off] CIN = U27310DL2009PTC186541

Company & Directors' Information:- K. D. STEEL PRIVATE LIMITED [Strike Off] CIN = U28939DL2012PTC244467

Company & Directors' Information:- STEEL INDIA PRIVATE LIMITED [Strike Off] CIN = U00349KA1958PTC001309

    Excise Appeal Nos. E/50807 and 50848/2018-Ex [SM] [Arising out of Common Order-in-Original No. RPR/EXCUS/000/COM/CEX/096-097/2017 dated 28.12.2017 passed by the Commissioner, Customs, Central Excise & Service Tax, Raipur] and Final Order Nos. 52329-52330/2018

    Decided On, 28 June 2018

    At, Customs Excise Service Tax Appellate Tribunal New Delhi

    By, THE HONORABLE JUSTICE: AJAY SHARMA
    By, MEMBER

    For Petitioner: M. Saharan, Advocate And For Respondents: K. Poddar, DR.



Judgment Text


1. These are cases of clandestine removal of M.S. Ingots. Since the duties and imposition of penalties are based upon the same evidences leading to the conclusion of clandestine removal therefore both the appeals are being disposed of by this common order.

2. The question involved in these appeals is whether the Principal Commissioner vide its impugned order dated 28.12.2017 is justified in confirming the demand of Central Excise duty of Rs. 4,65,570/- along with interest and penalty in respect of clandestine removal of 154.580 mt of M.S. Ingots recovered from the appellant M/s. Sairam Steels Pvt. Ltd., Raigarh (CG) of which the appellant-Pawan Kumar Agarwal is Director.

3. I have Heard both the parties and perused the records. Two show cause notices were issued to the Appellants. In the First show cause notice the Appellants were asked to show cases as to why:-

(i) Central Excise duty amounting to Rs. 4,65,570/- (BED Rs. 4,546,44/- (+) Ed. Cess Rs. 9,129/- (as detailed in Annexure-A) on the suppressed production of 154.580 MT of M.S. Ingots which has been clandestinely removed without issue of Central Excise Invoice and without and without following Central Excise procedure should not be recovered from them under the provision of Section 11 A of Central Excise Act, 1944.

(ii) Interest should not be recovered from them under the Section 11AB of the Central Excise Act, 1944 read with Rule 14 of the Cenvat Credit Rules, 2004.

(iii) Mandatory penalty equal to amount of duty should not be imposed upon the Noticee under the provisions of Section 11 AC of the Central Excise Act, 1944 for indulging in suppression of production and clandestine removal of goods without payment of duty.

(iv) Penalty should not be imposed upon them under the provisions of Rule 25 of Central Excise Rules, 2002 for contravention of Rule 4, 6, 8, 10 and 11 of Central Excise Rules.

Therefore another show cause notice dated 14.06.2010 was issued to the appellants as to why:-

(i) Central Excise duty amounting to Rs. 6,38,05,258/- (BED Rs. 6,20,45,307/- (+) Ed. Cess Rs. 12,40,906/- & SHE Cess Rs. 5,19,045/- (as detailed above) on the suppressed production and clandestinely removed 20745.926 MTs of M.S. Ingots during the period 2006-07 (form June 2006) to 2009-10 (up to September 2009), without issue of Central Excise Invoice and without following Central Excise Procedure, should not be recovered from them invoking the provisions of extended period of 5 years under the provisions of Section 11 A of Central Excise Act, 1944.

(ii) Interest should not be recovered from them under the Section 11 AB of the Central Excise Act, 1944.

(iii) Mandatory penalty equal to amount of duty should not be imposed upon the Noticee No. I under the provisions of Section 11 AC of the Central Excise Act, 1944 for indulging in suppression of production and clandestine removal of goods without payment of duty.

(iv) Penalty should not be imposed upon them under the provisions of Rule 25 of Central Excise Rules, 2002 for contravention of Rule 4, 6, 8, 10 and 11 of Central Excise Rules.

4. In the 2nd show cause notice dated 14.06.2010, at the end of paragraph 8.7 (after Chart 'B') it has been specifically mentioned that "the Central Excise duty involved in the suppressed production and clandestine removals of 154.580 MT M.S. Ingots as detailed in Annexure-A involving Central Excise duty amounting to Rs. 4,65,570/- BED Rs. 4,56,441/- (+) Ed. Cess Rs. 9,129/-) removed during the year 2006-07 by Noticee No. 1, through Noticee No. 2 as recorded in the diaries recovered from M/s. Monu Steels, Raipur, prop Shri. S.K. Pansari, by the officers of Central Excise on 15.01.2007 as discussed in the foregoing paras [as detailed in Annexure-A], is included/involved in the total Central Excise duty evaded by Noticee No. 1 during 2006-07 worked above." Meaning thereby that the Central Excise duty amounting to Rs. 6,38,05,258/- (for production of 20745.926 MT of M.S. Ingots) is inclusive of Central Excise duty of Rs. 4,65,570/- (for production of 154.580 MT of M.S. Ingots).

5. The said show cause notices are mainly based upon the entries recorded in the dairy of third party i.e. one Sh. S.K. Pansari proprietor of M/s. Monu Steel. The entire case of the Revenue is based upon the records recovered from the said Sh. S.K. Pansari proprietor of M/s. Monu Steel. At the time of adjudication before the ld. Principal Commissioner, Sh. S.K Pansari proprietor of Monu Steel did not appear for cross-examination in any of the scheduled dates despite various opportunities given and the same has been recorded in the impugned order. From reading of the show cause notice dated 14.06.2010 it is clear that the appellant with intent to evade payment of duty suppressed reproduction of M.S. Ingots so manufactured out of such sponge iron and clandestinely removed 20745.926 MTs (including the quantity of 154.580 MT of M.S Ingots manufactured and cleared clandestine by the appellant in 2006-07) without issue of invoices and without payment of duty as recorded in the dairies of M/s. Monu Steel prop. Sh. S.K. Pansari. Therefore it is cleared that the Central Excise Duty amounting to Rs. 6,38,05,258/- is inclusive of the duty of Rs. 4,65,570/- in respect of clandestine removal of 154.580 MT of M.S. Ingots.

6. In the said show cause notice the total demand of Central Excise duty raised was amounting to Rs. 6,38,05,258/- on the suppressed production and clandestine removal of 20745.926 MTs of M.S Ingots during the period 2006-07 (June 2006) to 2009-10 (Sept. 2009). But the ld. Principal Commissioner vide impugned order dated 28.12.2017 although dropped the demand of Central Excise duty of Rs. 6,38,05,258/- being not sustainable for alleged suppressed production of 20745.926 MTs of M.S Ingots by the appellant, but still confirmed the demand of Central Excise duty of Rs. 4,65,570/- in respect of clandestine removal of 154.580 MTs of M.S Ingots.

7. The ld. Advocate for the Appellant submitted that merely on the basis of diary entry of third party without any corroborative evidence, the department is not justified in proceeding against the Appellant. The ld. AR submitted that on the basis of dairy entries of Sh. S.K. Pansari proprietor of M/s. Monu Steel the department had initiated proceedings against some other manufacturer also i.e. M/s. Sh. Shyam Ingot and Casting Pvt. Ltd. and M/s. Nutan Ispat & Power Pvt. Ltd., Raipur and that day they accepted their irregularity and admitted the duty liability and therefore on the basis of the same dairy entry the department is justified in proceedings against the appellants in the present matter.

8. Since some of the manufactures i.e. M/s. Sh. Shyam Ingot and Casting Pvt. Ltd. and M/s. Nutan Ispat & Power Pvt. Ltd., Raipur, whose names were also found in the dairy recovered from Sh. S.K. Pansari proprietor of M/s. Monu Steel, accepted their irregularities and admitted the duty liability therefore no corroboration was required in those cases. But in the present case the appellant did not admit the liability and the same is recorded in para 6.6 of show cause notice dated 25.11.2009:

"6.6. Shri Pawan Kumar Agarwal was also made aware of the fact that in the diary of Shri. S.K. Pansari the names of several Steel manufacturers have been mentioned and that some of the manufactures have accepted these transactions as genuine and have discharged their duty liability, establishing thereby the authenticity of the of diary contents/entries.

In spite of such clear evidences of the authenticity of diaries of Noticee No. 2 indicating therein transaction pertaining to Noticee No. 1, Shri Pawan Kumar Agarwal, emphatically refuted to have had any transaction with either of them and also expressed his unawareness as to why Noticee No. 1's name appear in such diaries."

Para 6.2 of show cause notice dated 14.06.2010 also stated as under:

"6.2. x x x In reply Shri Pawan Kumar Agarwal, deposed that they had no transactions with or through the said M/s. Monu Steel (Prop. Shri S.K. Pansari), Raipur and that they had never paid commission to the said trader.

To the specific query as to why their units name figure in the list of units recorded in the documents/records recovered from M/s. Monu Steel (Prop. Shri S.K. Pansari), Raipur, Shri Pawan Kumar Agarwal submitted that he has no idea as to how their name features in the diaries and that this aspect can very well be explained by Shri. S.K. Pansari himself."

9. The ld. Advocate for the Appellant further submitted that the Revenue has not adduced any corroborative evidence to show the movement of the goods from the premises of the appellant to the premises of any buyers or the customers nor they brought on record any evidence as to whose is buyers of the goods allegedly sold through M/s. Monu Steel. The ld. Counsel for the appellant also submitted that if the department's contention is accepted that their might be sale of clandestine removal of goods through M./s. Monu Steel, then the onus is on the department to make an enquiry from at least some of those customers who might have purchased such goods. However, no such enquiry has been made from any of those persons.

10. In the impugned order nowhere it has been discussed as to how the demand to duty of Rs. 4,65,570/- is sustainable in the absence of any clinching evidence of clandestine manufacture and removal of the goods and also in view of the fact that the said amount is already included in the duty demand of Rs. 6,38,05,258/- which has been dropped in the impugned order by the ld. Principal Commissioner. There is absolutely no evidence on record to show that the appellant has cleared 154.580 MT of M.S. Ingots. The entire demand is based upon the records recovered from Sh. S.K. Pansari proprietor of M/s. Monu Steel. There is no evidence expect the said statement and private dairy of 3rd party i.e. of Sh. S.K. Pansari which contains the name of the appellant.

11. The law as to whether the third party records can be adopted as an evidence for arriving at the findings of clandestine removal, in the absence on any corroborative evidence, is well settled. Only on the basis of statement of third party no demand could be made. The Hon'ble High Court of Judicature at Allahabad in the matter of Continental Cement Company v. Union of India : 2014 (309) ELT 411 (All.) and also this Tribunal in the cases of Raipur Forging Pvt. Ltd. Bs. CCE, Raipur : 2016-(335) ELT 297 (Tri.-Del.), CCE & ST Raipur v. P.D. Industries Pvt. Ltd : 2016 (340) ELT 249 (Tri.-Del.) and CCE & ST, Ludhiana v. Anand Founders & Engineers : 2016 (331) ELT 340 (P&H), have categorically held that the findings of clandestine removal cannot be upheld based upon the third party documents unless there is clinching evidence of clandestine manufacture and removal of the goods.

12. In an identical matter this tribunal vide its order dated 04.04.2018 in Appeal No. E/50526-50527/2018 -SM titled as, Shree Consultants Pvt. Ltd. v. C.C.E. & S.T. Raipur set aside the demand which was also made only on the basis of the entries made in the records of M/s. Monu Steel and held as under:

"xxx xxx xxx

4. I find that the entire case of the Revenue is based upon the records recovered from M/s. Monu Steels. Even in those records, the appellant's name has not been spelt correctly and it is based upon the statement of the representative of M/s. Monu Steels that the Revenue entertained a view that "S. Iron" refers to the appellant's clearances. When the Director of the appellant contacted by Revenue, he very clearly, in his statement recorded by the officers, deposed that he does not even know M/s. Monu Steels. Further, the Revenue has not made any enquiries from the buyer M/s. Sapna Steels and has solely relied upon the entries made in the record of M/s. Monu Steels.

5. The law i.e. as to whether the third party records can be adopted as an evidence for arriving at the findings of clandestine removal, in the absence of any corroborative evidence, is well established. Reference can be made to Hon'ble Allahabad High Court decision in the case of Continental Cement Company v. Union of India : 2014 (309) ELT 411 (All.) as also Tribunal's decision in the case of Raipur Forging Pvt. Ltd. v. CCE, Raipur-I : 2016 (335) ELT 297 (Tri.-Del.), CCE & ST, Raipur v. P.D. Industries Pvt. Ltd : 2016 (340) ELT 249 (Tri.-Del.) and CCE & ST, Ludhiana v. Anand Founders & Engineers : 2016 (331) ELT 340 (P&H). It stand held in all these judgments that the findings of clandestine removal cannot be upheld based upon the t

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hird party documents, unless there is clinching evidence of clandestine manufacture and removal of the goods. In the absence of any corroborative evidence and in view of the law declared in the above decisions, I find no justifiable reasons to uphold the impugned orders. Accordingly, the same are set aside and both the appeals are allowed with consequential relief to the appellants." Similarly this tribunal in the matter of Excise Appeal No. E/50874/2018-Ex [SM] M/s. Ashok Ispat Udyog v. Comm. of C. Ex., CGST, Raipur & Excise Appeal No. E/50812/2018-Ex [SM] M/s. Vijay Chand Bothra v. Comm. of C. Ex., CGST, Raipur, set aside the demand since the same was based only upon the diary entries of Sh. S.K. Pansari proprietor of M/s. Monu Steel without their being any corroborative evidence. 13. Recently also this tribunal in a batch of matters being Appeal Nos. E/51117-51118/2018-SM and E/50940, 51236, 51241/2018 Arora (CG) Energy & Steel P. Ltd., v. CCE & ST Raipur vide common order dated 15.06.2018 set aside the demand since the entire case of the Revenue is based upon the entries made in the records of M/s. Monu Steel without there being any corroborative evidence. 14. In view of the above discussions and findings, the appeals are allowed and the impugned order is set aside. As a result the penalty imposed on the Sh. Pawan Kumar Agarwal, Director is also set aside.
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16-11-2018 The Asstt Commissioner of Income Versus The Jayesh Steel Pvt.Ltd Income Tax Appellate Tribunal Ahmedabad
15-11-2018 Mahindra Sanyo Special Steel Private Limited, Represented by its Authorized Signatory, Pradeen Salian Versus Union of India, Represented by its Secretary & Another High Court of Karnataka
14-11-2018 Commissioner of Central Excise, Dibrugarh Versus M/s. Arunachal Iron & Steel Fabrication & Chemical Processing Unit Customs Excise Service Tax Appellate Tribunal East Regional Bench Kolkata
26-10-2018 M/s Steel Authority of India, Chhattisgarh Versus Commissioner of Central Excise Central Excise Bhawan, Chhattisgarh High Court of Chhattisgarh
17-10-2018 Trident Steel & Engineering Co. & Another Versus Vallourec, represented by its President-Philippe Crouzet & Others High Court of Judicature at Bombay
26-09-2018 M/s. Mountain Steel Pvt. Ltd Versus Ito, W-1(3), Chandiarh Income Tax Appellate Tribunal Chandigarh
19-09-2018 M/s. Shree Mahalaxmi Steel Structure Pvt. Ltd. & Another Versus CCE&ST, Raipur Customs Excise Service Tax Appellate Tribunal Principal Bench New Delhi
18-09-2018 Mahalaxmi Steel Industries Versus C.C.E. Raipur Customs Excise Service Tax Appellate Tribunal Principal Bench New Delhi
11-09-2018 M/s. Innovative Enterprises Versus M/s. Steel & Tubes Syndicate High Court of Judicature at Madras
05-09-2018 Deputy Commissioner of Income Tax Versus M/s. Suresh Steel Tubes Pvt Ltd Income Tax Appellate Tribunal Bangalore
05-09-2018 M/s. Himadri Steel Pvt. Ltd. Versus Jharkhand Urja Vikas Nigam Limited High Court of Jharkhand
31-08-2018 Prabhat Steel Traders Pvt. Ltd. & Others Versus Excel Metal Processors Pvt. Ltd. & Others High Court of Judicature at Bombay
28-08-2018 OPG Iron & Steel Private Limited Versus NTPC Limited & Another High Court of Judicature at Calcutta
14-08-2018 Commissioner of Central Excise Versus JSW Steel Ltd. High Court of Judicature at Madras
02-08-2018 Bhavana Steel, Mumbai Versus Income Tax Officer 19 (1) (2) Income Tax Appellate Tribunal Mumbai
31-07-2018 M/s. Century Steel Traders, through its Proprietor, Rajiv Shivji Sharma Versus M/s. Polaris Steel Castings Pvt. Ltd. Through its Directors - Pushpendra Pramodkumar Mishra & Another In the High Court of Bombay at Nagpur
25-07-2018 Triputi Steel Traders Versus Assistant Commr. of C. Ex., Nagpur High Court of Chhattisgarh
23-07-2018 Tayyab Hussain Versus Steel Authority of India & Others High Court of Delhi
11-07-2018 International Commerce Limited Versus Government of India, Ministry of Steel, through its Secretary Udyog Bhawan, New Delhi & Others High Court of Chhattisgarh
02-07-2018 Suryoday Steel Plant Pvt. Ltd. and Others V/S C.C.E. & S.T.-Raipur Customs Excise Service Tax Appellate Tribunal New Delhi
27-06-2018 Steel Authority of India Limited, Salem Steel Plant, Represented by its V. Nandagopal, Dy. General Manager (F&A) Versus The Secretary to the Govt. of India, Ministry of Science & Technology, New Delhi & Others High Court of Judicature at Madras
22-06-2018 M/s. K.M. Safi & Co., Through one its Partner, M. Rafi Ahamed & Another Versus M/s. Dindigul Steel Rolling Mills (P) Ltd., Through its Director, S. Mohana Sundaram & Others Before the Madurai Bench of Madras High Court
22-06-2018 Jindal Steel & Power Ltd V/S Commissioner, Customs & Central Excise, Noida Customs Excise Service Tax Appellate Tribunal Regional Bench Allahabad
21-06-2018 Commissioner of Central Excise, Kolkata-IV V/S Bhushan Power & Steel Limited Customs Excise Service Tax Appellate Tribunal East Zonal Bench Bench, Kolkata
20-06-2018 M/s. Jindal Steel & Power Ltd. Versus CCE, Raipur Customs Excise Service Tax Appellate Tribunal Principal Bench New Delhi
19-06-2018 Steel Authority of India Limited, Bhilai Steel Plant, Bhilai, (C.G.) Versus State of Chhattisgarh, Through the Secretary, Department of Urban Administration and Development, Mantralaya, Naya Raipur (C.G.) & Others High Court of Chhattisgarh
18-06-2018 Indian Iron & Steel Company Limited Versus Dr. Arabinda Das & Others High Court of Judicature at Calcutta
13-06-2018 Bharat Steel Rolling Mills and Others V/S Commissioner of Central Excise, Meerut-I Customs Excise Service Tax Appellate Tribunal Regional Bench, Allahabad
04-06-2018 M/s. Khandelwal Steel & Tube Traders, Chennai Versus The Income Tax Officer, Ward IX (3), Chennai & Another High Court of Judicature at Madras
18-05-2018 Rite Steel Industries Pvt. Ltd. V/S CCE, Chennai-I Customs Excise Service Tax Appellate Tribunal South Zonal Bench At Chennai