VINDHYA STEELS Vs. COMMR. OF CENTRAL EXCISE

JUDGEMENT

(1.) HEARD Shri B.N. Chattopadhyay, Consultant for the Appellant and Shri J.R. Madhium, JDR for Respondent. Mr. Chattopadhyaya submits that appellant was engaged in trading of Iron and Steel products. He had been maintaining the accounts in RG - 23D and also had been issuing the Central Excise invoices on the basis of the Duty Paying document under which they received the goods in their factory. They supply, material to their customers and issue the duty paying documents as prescribed under Rule 57GG of Central Excise Rules, 1944. They purchase the goods from integrated steel plants and other registered dealer. They regularly submitted the duty paying document alongwith RG -23D account to Central Excise officers but no contravention was reported. On 15/1/96, the officers of D.G. A.E. (C.E.), Central Excise, Kolkata visited and searched their office premises and seized the statutory records as well as the Indian currency of Rs. 3,20,000/ -. Shri Ravishankar Agarwal, the proprietor of the appellant firm was taken to the office of DGAE and his statement was recorded under durace which was subsequently detected on next day i.e. on 17/1/96 confirming the affidavit before Chief Metropolitan Magistrate. On 6/6/96, Mr. Agarwal was again taken to office of D.G.A.E. A summon was issued and a statement was recorded. Mr Agarwal also stated that he used to get the Commission of Rs. 25/ -. A show cause notice was issued. It was alleged that the appellant abetted in the evasion of Central Excise Duty to the tune of Rs. 1,49,26,008.00 by different manufacturers through misuse of Modvat facility. Ld. Consultant submits that there is not an iota evidence that the manufacturer/dealers availed of credit on the basis of the invoices issued by the appellant and availed credit. No enquiry was caused with the manufacturer/dealer to whom such invoices were issued by the appellant to find out whether the credit had been availed by them or not. Ld. Consultant relied on the decision of this Tribunal in case of Mahesh Kumar Goel and Dinesh Kr. Goel v. Commr. of Central Excise, Kolkata -II order No. A -827 -830 dated -18/9/98. He submits that in case of Mahesh Kr. Goel and another, did not supply the materials to the manufacturers, but only provided them with the duty paying document to enable them to take Modvat credit. It was alleged in Mahesh Kumar's case that there was lack of adequate godown/ storage facility, mechanical devices for loading and unloading, lack of storage room and infrastructure. There was a gross difference between balance of RG - 23D and actual stock. The statement of one Shri R. dubey, Accountant of M/s. CTC corroborates Department's stand that the godown was not being actually used and the entries in EG -23D Register were being made by him under supervision of M.K. Goel, the main appellant. No payment slip of material were found, no weigh bridge was found. The vehicles used in transportation of modvatable goods, was found to belong to public vehicle department or were not capable to transport the modvatable goods in respect of above allegation. He submits that the majority decision of the Hon'ble CEGAT was that the case was not proved. He submits that their goods is squarely covered by Mahesh Kr. Goel's case. He also invited our attention to the decision of the Tribunal in case of Shree Enterprises and four Ors. v. Commissioner of Central Excise, Kolkata -II (A 980 -984 dated - 27.11.98). He submits that the allegation in both the cases were similar and, therefore, the present case is squarely covered by Mahesh Kumar Goel's case. He has also submitted a copy of Show Cause Notice issued to Ram Kumar Kamal Kumar. He submits that the statement of Ravi Shankar Agarwal, the proprietor of the appellant firm was coerced and was taken under threat and compulsion. So it cannot be relied upon. He, further, submits that the seizure of Indian currency of Rs. 3,20,000.00 on 15.01.96 by the officers of DGAE, Kolkata was withdrawn from the Bank. Rs.7.00 Lakhs had been withdrawn on 15.1.96 from M/s. UCO Bank, New Market Branch, Kolkata for the purchase of materials from M/s. SAIL, TISCO etc. Out of the said amount, an amount of Rs. 3,20,000.00 was left in their office which was seized by the officers. He submits that in order to confiscate the Indian Currency it has to be proved by solid and valid evidence that the Indian Currency represents the sale proceeds of the contraband goods. There having no such evidence in the present case. Therefore, he submits that Indian currency is not confiscable. He relies on the following decisions :

(2.) LD . D.R. supports the impugned order.

(3.) IN present case the appeal relates to the issue of Modvatable invoices involving the Central Excise Duty . It holds that the appellant had been affected in purchase or sale of steel material and he had issued invoices to different customers without actually transacting the goods under the cover of invoices so as to extend the benefit to those customers to avail of Modvat credit on the strength of those invoices. The material evidence relied upon by the Department upon this finding are that the inspection of the appellant's godown had shown that the godown had not been used for loading, unloading or storage or lack of such facility. The godown did not have any machinery to handle heavy material. There were no payment slips or weigh bridge . The stock was not valued and some of the vehicle numbers figuring in the invoices were either they load carriers or belong to public authority.