TMI Blog2014 (5) TMI 869X X X X Extracts X X X X X X X X Extracts X X X X ..... n not to uphold the action of the Revenue, no perversity could be seen in the findings of both of them - Decided against Revenue. - TAX APPEAL No. 198 of 2014 with OJ CIVIL APPLICATION No. 171 of 2014 - - - Dated:- 10-4-2014 - Mr. AKIL KURESHI AND Ms. SONIA GOKANI, JJ. For the Appellant : Mr AMAR N BHATT, ADVOCATE ORAL ORDER (PER : HONOURABLE Ms. JUSTICE SONIA GOKANI) Challenging the order of the Customs, Excise Service Tax Appellate Tribunal, West Zonal Bench, Ahmedabad { CESTAT for short} dated 27 th September 2013, the present Tax Appeal is preferred under Section 35G of the Central Excise Act, 1944 { the Act for short}, raising following substantial questions of law for our consideration : {A} Wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... {G} Whether CESTAT and the Commissioner (Appeals) are right in dismissing penalty imposed on the assessee under Section 11AC and interest under Section 11AB of the Central Excise Act, 1944 as they had a clear intention to evade the payment of Duty ? {H} Whether CESTAT and the Commissioner (Appeals) are right in holding that the seizure of the goods under Rule 25 of the Central Excise Rules, 2002 was not valid even though the same were not entered in their records ? {I} Whether CESTAT and the Commissioner (Appeals) are right in dismissing the penal provisions imposed on the employees, director and the broker under Rule 26 of the Central Excise Rules, 2002 even though they abetted in evasion of the Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty to the tune of Rs. 16.62 lakhs [rounded off]. Statements of Shri Sanjay Patel, Excise Clerk and Shri Subhash Agrawal, Director of the assessee firm and Shri Shambu Bhavsar, middleman had been recorded during the course of investigation. These statements were later on retracted by all the three persons. Show cause notice issued resulted into order in original confirming the clandestine removal of the fabrics. The material seized were confiscated, allowing the same to be redeemed on payment of redemption fine and penalty on the assessee firm and separate penalties on all the three persons above named. In an appeal preferred by the firm as well as individuals, the Commissioner [Appeals] held and observed that there was no evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorities concurrently given as they both have rightly said that the onus was on the Department to prove that there was clandestine removal of the fabrics by the assessee. Investigating agency appears not to have examined twelve buyers whose names have been revealed in the confessional statements of all the three individuals, which later on have been retracted. It appears that the show cause notice, which was issued after nearly six months, and therefore, there was sufficient time available with the investigating agency. However, in absence of any corroboration, if both the authorities have chosen not to uphold the action of the Revenue, no perversity could be seen in the findings of both of them. Predominantly, the issue is decided on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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