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CUSTOMS, EXCISE AND GOLD (CONTROL) APPELLATE TRIBUNAL, CALCUTTA
smt. Archna wadhwa, J.
R.J. Mishra & Co. -Appellant
Versus
Collector of Central Excise, Calcutta-II -Respondent
Final Order No. A-1040 & A-1041/Cal/98 Appeal Nos. E-354/98 & E-377/98, 1040 of 1998, 1041 of 1998, 354 of 1998, 377 of 1998
Decided On : 07-12-1998
B.N. Chattopadhyaya,R.K. Roy
Per Archana Wadhwa:
The facts involved in both the appeals are identical and as such both the cases are being disposed of vide a common Order.
2. Vide the impugned Order, Commissioner of Central Excise, Calcutta has imposed personal penalty of Rs. 40,000/- each on the appellants under the provisions of rule 173Q of Central Excise Rules, 1944.
3. The appellants are registered dealers of iron and steel products. They have been charged on the findings that they have issued Modvatable invoices without actually dispatching the materials to their customers with an intention to help their customers to take the Modvat credit on the basis of the invoices and as such have violation the provisions of rule 57GG. The findings against them are that they have abated purchasers of duty paying documents in availing the non-admissible Modvat credit. Apart from imposing personal penalties, the adjudicating authority has also cancelled their dealers registration certificate under rule 174. However, Indian Currency of Rs. 2.50 lakhs has been released to the second appellant M/s. Universal Trading Corp.
4. Shri B.N. Chattopadhyay, Ld. Consultant appearing on behalf of the appellants submitted that the department, in respect of its case has relied upon the following factors.
(1) Absence of weighment slips and transport bills for delivery of the material in question.
(2) Lorry Nos. and vehicle Nos. shown in the invoices reflected mat the same are incapable of carrying the heavy weights.
(3) The goods, in some cases have been sold at prices much less than the corresponding purchase price.
(4) Statement of Shri Prabhakar Mishra, Prop, of M/s. Universal Trading Corp. and authorised representative of M/s. R.J. Mishra & Co.
(5) Statement of various other persons.
5. He submitted that all the above factors (except the statements) were considered by the Tribunal in the case of Mahesh Kumar Goel and Dinesh Kumar Goel vs. CCE., Calcutta and vide its majority Order No.M-96/Cal/98 dt. 5.3.98 it was held that the same do not constitute sufficient evidence to hold against the appellants.
5.2 As regards the statements of various persons he submits that the statements of the customers are only to the effect that they were indulging into illegal transactions and were procuring the invoices without any corresponding procurement of goods. He submits that in all these statements, the party's names have not been mentioned. As such it is not justifiable to link these transactions with the appellants.
5.3 He further contended that the charge of abatement with the customers cannot be upheld against them in the absence of the customers being made parties in the notice and in the absence of the details of the quantum of irregular Modvat credit availed by them.
5.4 He submits that for the similar reasons, no reliance can be placed on the statements of their customers inasmuch as they do not know whether the statements were made by the other persons in a free and voluntary atmosphere; whether the same were retracted by them and what were the circumstances under which the same were tendered.
6. As regards the statement of Shri Prabhakar Mishra he submits that the said statements were made under duress and coersion and cannot be held to be a voluntary statement. Shri Prabhakar Mishra was authorised by Shri Sudhakar Mishra, partner of M/s. R.J. Mishra & Co. to give the statement. But he was not well-aware of the business of that company, a wrong statement was extracted from him and cannot be binding on the said company. He refers to an affidavit by Shri Sudhakar Mishra to that effect duly sworn in on 1.8.96.
6.2 As regards the cancellation of dealers registration certificate, he referred to the Tribunal's Order in the case of M/s. Goel Industries and M/s. Shri Bishanlal Iron Works vs. CCE being Order No. A-38-39/Cal/97 dt. 10.1.97 [reported in 1997 (19) RLT 560 (T)] vide which it has been laid down that the dealer's licence cannot be revoked. Reference application by the Revenue on the sam
