- (1.) The assessee is in appeal against the order dated 11-4-2008 passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (for short, "the Tribunal"), raising the following substantial questions of law :- "(i Whether findings of the Tribunal in para 12(i) of the order are erroneous, presumptive and contrary to facts established on documentary evidence on record and therefore, need to be corrected and interfered with by this Hon'ble Court? (ii Whether contemporaneous documentary evidence is to be preferred and relied upon to the contrary oral statement? (ii Whether the job workers of M/s. Kavantry Spring Fabrication Co.- M/s. V. Jai Auto Industries is the manufacturer of leaf springs in terms of Section 2(f) of Central Excise Act, 1944 ? (iv Whether M/s. V. Jai Auto Industries and not KSFC is liable to pay duty on leaf springs as manufacturer thereof? (v) Whether heat treatment admittedly undertaken by M/s. V. Jai Auto Industries amounts to manufacture of leaf springs in terms of Section 2(f) of the Central Excise Act, 1944 ? (vi Whether steel flats become excisable as leaf springs on only heat treatment at the hands of V. Jai Auto Industries and liable to the Central Excise Duty under the Central Excise Tariff Act, 1985?"
(2.) Briefly, the facts are that a show cause notice was issued to M/s. Kobe Suspension Company Private Limited, Faridabad, Smt. Kukky Uberoi, proprietor of M/s. Kavantry Spring Fabrication Company and Kulbir Singh Uberoi, Managing Director of M/s. Kobe Suspension Company Private Limited with the allegation of evasion of excise duty. It was on the basis of an intelligence report received by the Directorate General of Anti Evasion that the above noted units are indulging in evasion of excise duty. The above referred to two units have another unit M/s. Boltan India situated in the same premises with no demarcation boundary wall between them. From the record ceased at the time of search, it was found that number of transactions were not recorded in the books of account. Payments were received and made in cash. The entries made in the books of account of the unit regarding sale of production were not found entered in the books of alleged purchasers. After hearing the parties, the Commissioner vide order dated 23-4-2004 imposed a duty of Rs. 23,23,349/- on appellant no. 1 and levied penalty of equal amount of Rs. 23,23,349/- under Section 11AC of the Central Excise Act, 1944 (for short, the Act'). A personal penalty of Rs. 5 lacs was imposed on Smt. Kukky Uberoi, proprietor of appellant no. 1 under Rule 209A of the Central Excise Rules, 1944.
(3.) In Appeal, the Tribunal while upholding the order passed against appellant no. 1 directed recalculation of the duty by holding that appellant no. 1 was entitled to the benefit of Cenvat credit on the raw material used in the manufacturing of spring leafs. On the disposal of spring leafs by appellant no. 1 no excise duty was paid and the burden was sought to be shifted on the alleged job worker M/s. V. Jai Auto Industries. It could not be satisfactorily replied by the appellant before the authorities and the Tribunal that it was only the job which was got done from M/s. V. Jai Auto Industries. There was apparent contradictions in the stand taken by the appellants at various stages. It is found by the Tribunal that the goods as such sent by the appellants to the job worker were excisable and further that the procedure required to be followed for sending the goods for job work was not followed. From the record seized and also the statement of the party concerned, it also came to the notice of the Department that the challan vide which the goods were sent to M/s. V. Jai Auto Industries for job work clearly mentioned different leaf springs. The bill raised by M/s. V. Jai Auto Industries is only for the purpose of job work. The assessee purchased lubricating oil which is, in fact, used for manufacture of leaf springs for quenching otherwise the assessee was not engaged in trading thereof. In fact, by creating entries, the appellants were trying to avoid payment of duty by shifting the burden on M/s. V. Jai Auto Industries.;