Page 99 - ELT_1st June 2020_VOL 372_Part 5th

2020 ] PRINCIPAL COMMISSIONER OF CGST & CENTRAL EXCISE v. SHAH FOILS LTD. 633

“2(a) Whether in the facts and circumstances of the case, the Hon’ble Cus-
tom, Central Excise and Service Tax Appellate Tribunal, Western Zonal
Bench, Ahmedabad has committed an error in giving perverse findings on
facts which are without any evidence and contrary to the material evidenc-
es available on record?
(b) Whether in the facts and circumstances of the case, the Hon’ble Cus-
tom, Central Excise and Service Tax Appellate Tribunal, Western Zonal
Bench, Ahmedabad has erred in allowing the Appeal merely on the basis of
submissions made by the assessee that too without any contrary evidence
and without examining the material evidences on record discussed by the
adjudicating authority?
(c) Whether in the facts and circumstances of the case, the Hon’ble Cus-
tom, Central Excise and Service Tax Appellate Tribunal, Western Zonal
Bench, Ahmedabad has erred in coming to the conclusion that charges of
clandestine removal on the basis of pen driver data are not sustainable?
(d) Whether the assessee can avail CENVAT credit on inputs even when
the declared in the documents on the strength on which credit availed,
were not genuine or were fake?
(e) Whether in the facts and circumstances of the case, the Hon’ble Cus-
tom, Central Excise and Service Tax Appellate Tribunal, Western Zonal
Bench, Ahmedabad is justified in holding that no case for penalty is made
out?”
5. The short question which arises for consideration is whether the elec-
tronic evidence collected during the course of the investigation by the appellant
is properly taken into consideration by the Tribunal for adjudication in the ap-
peal or not?
6. The short facts leading to the case of the appellant herein as under :
6.1 M/s. Shah Foils Limited, 1820/1, Santej-Khatraj Road, Opp. Raj
Nagar Bus Stop, Near GEB Sub-Station, Santej, Taluka Kalol, District : Gandhi-
nagar, Gujarat (the Assessee/M/s. SFL) is engaged in the manufacture of Stain-
less Steel Cold Rolled Coils (S.S.C.R. Coils) and Stainless Steel Cold Rolled Strips
(S.S.C.R. Strips) falling under Chapter 72 of Central Excise Tariff Act, 1985 for
manufacturing these goods, their main raw materials is Stainless Steel Hot Rolled
Coils (S.S.H.R. Coils). Based on intelligence, searches were conducted by Direc-
torate General of Central Excise Intelligence (DGCEI), Mumbai on 10-7-2013 at
factory premises, office premise of M/s. SFL, at residential premises of Shri
Ramesh M. Shah, Director of M/s. SFL and at Lootery/Ice cream Stall of Shri
Manoj Tanna, opposite of Office Premises of M/s. SFL at Mumbai. During search
at Mumbai office, it was revealed that M/s. SFL was operating one trading firm
in the name of M/s. Sankalp Foils Pvt. Ltd. (M/s. SFPL) which was registered
with Central Excise Department as ‘Dealer’. During search at Lottery/Ice Cream
Stall, certain incriminatory documents pertaining to the period from April-2012
to July-2012, indicating clearance effected by M/s. SFL and one key of locker of
Shri Ramesh M. shah in ‘Venilal Safety Vaults Pvt. Ltd.’ were recovered. Further
search of lockers in possession of Shri Ramesh M. Shah resulted in recovery of 11
bundles of loose incriminating documents and three Pen Drives. It was found
that these lockers were maintained by Shri Ramesh M. Shah under fictitious
names namely ‘R.M. Jain & ‘R.M. PateL’ because while opening of the locker by
the key, retrieved from Ice Cream Stall, Shri Ramesh M. Shah made the formali-
ties like signature etc. as being owner of the locker. Data retrieved from these Pen
EXCISE LAW TIMES  1st June 2020  99