TMI Blog2010 (4) TMI 406X X X X Extracts X X X X X X X X Extracts X X X X ..... been made, the appellant was not permitted to cross-examine the panchas which has resulted into violation of the principles of natural justice. Held that- contention on cross examination not raised before Tribunal. Impugned Tribunal order indicating that appellant neither appeared nor adjourned. Sought on the date of hearing. Concurrent findings on the fact based on appreciation of evidence. . question of law not arise. - 204 of 2009 - - - Dated:- 15-4-2010 - D.A. Mehta and H.N. Devani, JJ. REPRESENTED BY: S/Shri S. Suriyanarayanan with Dhaval Shah, for the Appellant. Shri R.J. Oza, for the Respondent. [Judgment per: H.N. Devani, J. (Oral)]. - In this appeal under section 35G of the Central Excise Act, 1944, the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t? (v) Whether, in the facts and circumstances of the case and in the light of the binding order dated 9.8.2007 of the Honourable High Court in Tax Appeal No.902 of 2007, the Tribunal was justified in holding that review of order dated 2.4.2007 cannot be sought in the garb of an ROM application and even without considering whether there is any mistake apparent on record or not? (vi) Whether, in the facts and circumstances of the case and the settled law on the subject, can the Tribunal could have concluded that imposition of composite penalty under two different penal provisions, viz. 173Q(1) of the Central Excise Rules, 1944 and section 11AC of Central Excise Act, 1944 is not a mistake apparent on the record? 2. The appellant is, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd imposition of penalty, which resulted into order dated 30th January 2004. The appellant carried the matter in appeal before Commissioner (Appeals) who vide order dated 4th February 2005, dismissed the appeal. The appellant carried the matter in further appeal before the Tribunal. The Tribunal vide the impugned order dated 2nd April 2007 reduced personal penalty on the Director from Rs.1,00,000/- to Rs.10,000/-, but dismissed the appeals subject to the aforesaid modification. 3. The appellant carried the matter before this Court in Tax Appeal No.902 of 2007. Vide order dated 9th August 2007, the appeal was disposed of with liberty to the appellant to approach the Tribunal for necessary correction in the order of the Tribunal. Liberty w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of raw materials, and excess wages to labourers had not been established by the revenue and as such, the Tribunal was not justified in upholding the orders passed by the lower authorities. 6. Referring to the order made by the adjudicating authority it is pointed out that composite penalty has been imposed under rule 173Q(1) of the Central Excise Rules, 1944 read with section 11AC of the Act to submit that it is not permissible in law to levy composite penalty in respect of two different provisions. It is, accordingly, submitted that the appeal requires admission and that the questions, as proposed or as may be deemed fit, are required to be formulated. 7. The contentions advanced by the learned advocate in relation to the subsequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horities admitted recovery of fifteen double set/ parallel central excise invoices and removal of processed man made fabrics without accounting for the same in the statutory records and without payment of central excise duty. It is further recorded that the traders whose names were reflected in the invoices, had admitted having sent the grey fabrics without challan and having received the same from the appellant, after processing, without payment of duty under the cover of parallel central excise invoices. It is also recorded that the recovery of fifteen double set/parallel central excise invoices from the drawer of the table of the excise clerk is not disputed and stands admitted by the Director in his two statements recorded during the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls of Annexure A would not tally with fictitious invoices. The party's very contention of non-tallying proves the offence." Thus, the adjudicating authority has in the Order in Original explained the difference in the annexures to the panchnama and to the show cause notice. 11. As regards the cross-examination of the witnesses, Commissioner (Appeals) has considered the submissions and recorded that the appellant was required to give sufficient reasons before making a request to cross-examine of the witness and that it is the prerogative of the adjudicating authority whether or not to accede to such request. Moreover, a perusal of the impugned order of the Tribunal makes it amply clear that the said question does not arise there from, i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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