TMI Blog2010 (4) TMI 822X X X X Extracts X X X X X X X X Extracts X X X X ..... al infirmity so as to warrant interference. No question of law, much less any substantial question of law can be stated to arise out of the impugned order of the Tribunal. The appeals are accordingly dismissed. - Tax Appeal No. 542 of 2009 with Tax Appeal Nos. 810-823 of 2010, - - - Dated:- 21-4-2010 - D.A. Mehta and H.N. Devani, JJ. Shri Darshan M. Parikh, Standing Counsel, for the Appellant. [Judgment per : H.N. Devani, J. (Oral)]. In these appeals under Section 35G of the Central Excise Act, 1944 (the Act), the appellant-Revenue has challenged consolidated order dated 11th December, 2008, made by the Customs, Excise and Service Tax Appellate Tribunal (the Tribunal) proposing the following two questions: - (i) Whether the Hon ble CESTAT is justified in observing that the evidence brought on record fn the form of depositions/statements of suppliers, buyers and transporters under Section 14 of the Central Excise Act, corroborated/supported by evidences in the form of Bank s statements as well as trip s registers in respect of clandestine removal of the goods by the assessee, are not sufficient or not reliable to prove? (ii) Whether the Hon ble CESTAT i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties came to be issued. The show-cause notice came to be confirmed by the Commissioner vide common order dated 31st March, 2008. 5. Being aggrieved, the respondents preferred appeals before the Tribunal, which came to be allowed vide the impugned order dated 11th December, 2008. 6. Heard Mr. D.M. Parikh, learned Standing Counsel for the appellant-Revenue in all these appeals. The learned counsel has assailed the impugned order of the Tribunal and has placed reliance upon the findings recorded by the Commissioner. It is submitted that in the light of the statements of the respondents except Sulekhram and its Chairman, recorded under Section 14 of the Act, wherein it has been stated that the goods were manufactured by Sulekhram and that they had purchased the same through Shri Shakeel Abdul Latif Vohra, partner of M/s. A.S. Corporation, the Tribunal was not justified in holding that there was no sufficient evidence against the respondents. It is accordingly submitted that the impugned order of the Tribunal does give rise to substantial questions of law as proposed or as may be formulated by this Court. 7. As can be seen from the impugned order of the Tribunal, the Tribunal h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S. Corporation which had been cleared clandestinely by Sulekhram. The Tribunal was of the view that the reasoning adopted by the Commissioner was not justified inasmuch as merely because the mark SULEKHRAM appeared on the TMT Bars purchased by various persons from M/s. A.S. Corporation, it cannot be concluded that the goods in question had been cleared clandestinely from its factory. The Tribunal was further of the view that more appearance of marking cannot be the sole factor to arrive at a finding against Sulekhram. The Tribunal noted that it was the case of M/s. A.S. Corporation that the goods had been purchased from other manufacturers like M/s. Sirhind Mills, M/s. Yogi Mills as well as from traders. The Tribunal accepted the contention raised on behalf of the respondents that the goods supplied by M/s. A.S. Corporation to their customers could be out of the stock-in-trade available in the market or could have been manufactured by other small manufacturers in the name of Sulekhram, in view of the fact that Sulekhram enjoyed a good reputation in the market. The Tribunal was of the view that whatever be the source of procurement of goods by M/s. A.S. Corporation, demand of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Revenue. The Tribunal was at a loss to understand as to what the Commissioner meant by stating that what is admitted need not be proved as it was not clear as to what was admitted and by whom. The Tribunal found as a matter of fact that there was no clear admission on the part of any representative of Sulekhram admitting clandestine manufacture and clearance of goods. The Tribunal was also of the view that allegations of clandestine removal are required to be established by production of positive and tangible evidence and should not be arrived at on the basis of surmises and conjectures. The Tribunal found that the case of the Revenue was based upon the statements of co-accused which statements were not supported by any independent corroborative evidence. The Tribunal found that in the facts of the present case, the Department had not detected any discrepancy in the other stock of raw material or final product at the time of visit of the officers to the factory of Sulekhram; that no incriminating documents were recovered from either the business premises or residential premises of Sulekhram. That there was no evidence as regards procurement of such a huge quantity of raw material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f M/s. Steel Tubes of India Ltd. v. CCE, Indore, 2007 (217) E.L.T. 506, wherein it has been held that penalty cannot be imposed where the assessee issues invoices only without movement of goods. The Tribunal accordingly set aside the penalty imposed upon the other respondents who are only traders and are alleged to have issued invoices without supply of goods. 12. From the facts and contentions noted hereinabove, it is apparent that the Tribunal has based its conclusion upon the findings of fact recorded by it after appreciation of the evidence on record which have remained unchallenged inasmuch as the appellant has not raised any question assailing the impugned order on the ground of perversity. The Tribunal has found as a matter of fact that the case of the Revenue is based upon the statements of the traders and brokers who had stated that they only used to give bills to Shri Shakeelbhai Vohra of M/s. A.S. Corporation without actual supply of any material, despite which, the authorities had turned down the request made by M/s. A.S. Corporation as well as Sulekhram for cross-examining the traders and brokers. The Tribunal was, therefore, justified in holding that the statements ..... X X X X Extracts X X X X X X X X Extracts X X X X
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