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2021 (3) TMI 845 - HC - Central ExciseValidity of reversal of Order-in-Original passed by the Commissioner of Central Excise, pursuant to an order of remand passed by the Tribunal in the earlier round of litigation - HELD THAT:- On a perusal of the Order-in-Original, more particularly, the findings from paragraph 36 to paragraph 39, the same was found to be almost a verbatim repetition of the findings rendered by the Hon'ble Technical Member in the earlier round of litigation before the Tribunal, which was a minority view. On a reading of the order in its entirety, there appears to be a missing link, which was noted by the Tribunal and the Tribunal observed that the Department failed to establish any link about the payment to the assessee-firm's transactions and that the appellant-partner never admitted any clandestine removal and all that he had accepted was the payment to three persons, who were employees of SWC and that there is no evidence placed by the Department to show purchase of the raw material, Oleum. Further, the important aspect that the appellant did not have sufficient storage facility for such huge quantity of LAB, was also noted to be a very relevant factor. Further, the Tribunal rightly noted that the Adjudicating Authority did not follow the directions issued by the Tribunal while remanding the matter for de novo consideration and it reiterated only the statements of persons with regard to the supply of LAB through SWC and failed to address the issue on the procurement of Sulphuric Acid/Oleum. The findings rendered by the Tribunal would clearly show that a thorough fact finding exercise has been done and the missing links have been pointed out by the Tribunal and we find the entire matter to be fully factual and no question of law would arise for consideration in the appeals filed by the Revenue. The onus was on the Department to prove that there was clandestine manufacture and removal by the assessee-firm and this having not been established to the extent required, there was no error or perversity found in the approach of the Tribunal warranting interference. The Tribunal ought to have granted full relief to the appellant-partner, instead of restricting the penalty to ₹ 2,00,000/-. That apart, no reason has been assigned by the Tribunal as to why it did not vacate the entire penalty and thought fit to reduce it to ₹ 2,00,000/- , though the Tribunal had exonerated the assessee-firm entirely. Therefore, the order passed by the Tribunal, insofar as sustaining the penalty to the tune of ₹ 2,00,000/- calls for interference. Application is allowed and the substantial questions of law raised by the appellant-partner are answered in favour of the appellant-partner.
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