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2017 (10) TMI 1108 - CESTAT NEW DELHIMaintainability of appeal - authorization as per section 35B of the CEA 1944 - Clandestine removal - ingots - it was alleged that the ingots were received in the factory of the respondent and they cleared the same without recording in their statutory records - Whether the appeal is maintainable under section 35(b)(2) of the Central Excise Act 1944 or not? - Held that: - from the records of the case it is not coming out when the committee was found and was constituted. Moreover, both the Commissioners have signed on the Review order without date and even in one case without name. The said records does not show that whether the officers applied their mind to the issue and recorded any opinion as per the requirement of section 35(b) of the Central Excise Act. Why the order of Commissioner (A) was not legal or proper and warranted to be challenged by the Commissioner (A) - reliance placed in the case of COMMISSIONER OF CENTRAL EXCISE, DELHI-I Versus KUNDALIA INDUSTRIES [2012 (8) TMI 789 - DELHI HIGH COURT], where it was held that No opinion is formed by the Committee of Commissioners about the illegality of the order as required under Section 35B of the Central Excise Act. There was no authorization by the Committee of Commissioners to file appeal on its behalf - appeal dismissed being non-maintainable. Whether during the relevant period, the Additional Director General of DGCEI was having the jurisdiction to issue SCN? - Held that: - the SCN has been issued to the respondent on 08.05.2001. Whereas the N/N. 38/2001-CE(NT) dated 26.06.2001 was effective from 01.07.2001. Admittedly, the SCN has been issued prior to the effective date of N/N. 38/2001-CE(NT) - at the time of issuance of the show cause notice, the Additional Director General, Shri R.K. Sharma of DGCEI was not having any jurisdiction to issue the show cause notice - decided in favor of respondent-assessee. Whether the adjudicating authority was an appropriate officer to adjudicate the matter or not? - Held that: - In terms of the office memo dated 12.02.1958, 23.03.1958 and 28.05.1958 it has been stipulated that for Gazetted appointments, there should be a gazette notification. As no such notification has been placed on record for promotion and appointment of Shri Rajiv Aggarwal as Joint Commissioner, therefore, the adjudication order passed by him as Joint Commissioner is not sustainable in the eyes of law - decided in favor of respondent-assessee. Whether the retracted statement of Shri Purushottam Kumar Gupta is admissible evidence or not? - Held that: - the retraction made by the respondent is available on record. Therefore, the retraction made by the respondent is required to be considered and no credence of retraction was given. Therefore, the said retraction is admissible. Consequently, the statements given by Shri Purushottam Kumar Gupta on 10.10.2000 and 08.03.2001 are not admissible as an evidence - decided in favor of respondent-assessee. Whether the loose slips recovered from Dharamkanta can be relied upon to allege clandestine removal of goods or not? - Held that: - the katcha slips has not been identified by the panch witness, therefore, the statements of Shri Purushottam Das Gupta and these katcha slips cannot be the basis to allege clandestine clearance of the goods. Moreover, Shri Nepal Singh also denied that he has written these documents during the cross examination. No other evidence has been produced by the Revenue on record to allege clandestine removal of the goods and in the absence of any concrete evidence on record, the charge of clandestine removal of goods is not sustainable against the respondent - decided in favor of respondent assessee. Whether penalty on Shri Purushottam Kumar Gupta can be imposed or not? - Held that: - As the charge of clandestine removal is not sustainable against the respondents, therefore, no penalty can be imposed on the respondents. Appeal dismissed - decided against Revenue.
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