Anil Choudhary ORDER
Anil Choudhary, Member (J)
1. The appellant, M/s. Alok Ispat Pvt. Ltd., situated at 134/D, O.P. Jindal Industrial Park, Punjipathra, Raigarh (C.G.) is engaged in the manufacture of M.S. Ingots, which are dutiable and is registered with the Department. The appellant has been making regular compliances.
2. The issue involved in this appeal is whether the respondent commissioner is justified in confirming demand of Rs. 6,54,599/- (including cess) on the alleged clandestine removal and clearance of 218.220 M.T. of M.S. Ingots, on the basis of third party records, being entry in the diary of M/s. Monu Steels (Proprietor, Shri S.K. Pansari), is a broker/commission agent, who facilitates sales and purchase of Iron and Steel Materials, and also in the records of M/s. Gopal Traders (Proprietor, Shri Gopal Krishna Agarwal) is another broker/commission agent, who facilitates purchase and sales of Iron and steel products. Further, equal amount of penalty was imposed under Section 11AC along with interest. Another proposed demand of Rs. 8,73,77,090/- was dropped on account of presumed suppressed production and clearance of 28696.017 MT of M.S. Ingots, on the basis of excess consumption of electricity. Further, penalty under Rule 26 of the erstwhile Central Excise Rules was also imposed on M/s. Monu Steels and Shri Naren Kumar Mishra, Director of the appellant company and also on M/s. Gopal Traders.
3. Ld. Counsel for the appellants submit that the entire case of the department is based upon the entries in the diary recovered from one Mr. S.K. Pansari (proprietor of M/s. Monu Steels), and also on the statement of the said Mr. S.K. Pansari, without their being any corroborative evidence.
4. The Ld. Authorised Representative appearing for the Department reiterated the findings in the impugned order. He also submitted that the ld. Commissioner in the impugned order has specifically recorded that Shri Naren Kumar Mishra, Director of M/s. Alok Ispat Pvt. Ltd. had acknowledged the clearance of 218.220 MTs of MS ingots in his deposition made under Section 14 of Central Excise Act and the same has not been retracted by him.
5. So far as the statement of Shri Naren Kumar Mishra is concerned, while going through the same, I found that he has nowhere acknowledged the clearances of 218.220 MTs of MS ingots. Rather he stated as under:-
"After seeing all the entries pertaining to my unit and satisfying myself I am affixing my signature on Annexure-A as a token of having seen and perused the same. I submit that we had not cleared/removed MS ingots through the said commission agent, without issue of sale invoices or without payment of Central Excise duty. No commission has been paid by us to the said M/s. Monu Steels Raipur."
6. The finding of the ld. Commissioner about the statement of Mr. Naren Kumar Mishra at para 6.1 of the impugned order is based upon the mis-interpretation of the following statement, wherein Shri Naren Kumar Mishra on 31.10.2009 stated as under;
"I have seen and gone through the relevant records/registered/diaries recovered by the Central Excise Officer on 15.01.2007 from the premises of M.s Monu Steels (Prop. Shri S.K. Pansari), Commission Agent, Raipur and after seeing the entries pertaining to my unit and satisfying myself that Annexure-A has been prepared on the basis of such entries I am affixing my signature on it, as a token of having seen and perused the same."
7. Therefore, apart from the third party statement, no other corroborative evidence has been produced by the Department.
8. The said show cause notice is 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.
9. The ld. Advocate for the Appe........