TMI Blog2015 (9) TMI 522X X X X Extracts X X X X X X X X Extracts X X X X ..... timation was sent by letter under Certificate of Posting. The concurrent findings of fact recorded by the fact finding authorities, as briefly noted above, clearly attracted the proviso to Section 11- A(1) of the Act. Removal of goods in the name of dummy unit and unestablished purchases from one M/s. Ajay Traders for trading purposes were clearly the result of suppression of facts and fraud by the appellants and, therefore, the Adjudicating Authority has not committed any error of law to invoke the extended period of limitation under the proviso to Section 11-A(1) of the Act. - Decided against the assessee. - Central Excise Appeal No. - 22 of 2004 - - - Dated:- 4-9-2015 - Hon'ble Tarun Agarwala And Hon'ble Surya Prakash Kesarwani, JJ. For the Appellant : Pankaj Bhatia, Gopal Verma For the Respondent : S.S.C., C.S.C., K.C. Sinha, S. K. Misra, S. P. Kesarwani ORDER (Per: Surya Prakash Kesarwani,J.) 1. Heard Sri Pankaj Bhatia, learned counsel for the appellants and Sri B.K. Singh Raghuvanshi, learned senior standing counsel for the respondent. 2. Learned counsel for the appellant submits as under: (i) The impugned final order No.895-897/200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d submits that under the facts and circumstances the Adjudicating Authority was justified to invoke the proviso of Section 11- A of the Act. 5. He also referred to the findings recorded by the Adjudicating Authority and the Tribunal and on that basis contended that even on merit there is no error in the impugned order of the Tribunal. The findings recorded by the Adjudicating Authority and the Tribunal are findings of fact based on consideration of relevant material and evidence on record and as such they can not be interfered with in appeal. 6. He relied upon the judgments of Hon. Supreme Court in the case of Usha Rectifier Corpn (I) Ltd. Vs. Commissioner of Central Excise (2011) 11 SCC 571, Commissioner of Central Excise Visakhapatnam Vs. Mehta Co.(2011) 4 SCC 435 and a Division Bench Judgment of this Court in the case of Commissioner of Customs, and Central Excise, Ghaziabad Vs. M/s. Rathi Steel and Power Ltd. decided on 4.5.2015. 7. We have carefully considered the submissions of the learned counsel for the parties and perused the record. 8. Briefly stated the facts of the present case are that M/s. Carbon India was a partnership firm consisting of partners namely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Excuse Rules 1944 and the penalty of ₹ 2 lakhs each on Sri Deepak Agrawal and M/s. Rohit Enterprises. 10. Being aggrieved, the appellants and other co-noticees filed separate appeals before the Customs Excise Appellate Tax Tribunal, New Delhi. 11. The appeal of the present appellants was numbered as Appeal No.2755/2000-NB (B). By the impugned final order dated 3.12.2003 the Tribunal upheld the demand of duty except the demand on account of sale of Sealing Wax for which matter was remanded. The Tribunal reduced the penalty to ₹ 1.5 lakhs and set aside the penalty imposed on M/s. Rohit enterprises and Sri Deepak Agarwal on the ground that penalty was already imposed on the appellants partnership firm. 12. Being aggrieved the appellants have filed the present appeal. 13. In the impugned order the Tribunal has recorded following findings of fact: We have considered the submissions of both the sides. We observe from the perusal of the impugned order that the Commissioner has not accepted the plea of the appellants about purchase of carbon paper from M/s. AJAY TRADERS on the ground that the consignment Notes were dated 28.11.89,10.12.89, 20.12.89 and 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding that no financial withdrawal could be made by M/s. Rohit Enterprises without the consent of one of the partners of the appellant and this has not been controverted. We, therefore, do not find any reason not to treat M/s. Rohit Enterprises as a dummy unit and the clearances shown against its name are, in fact the clearance made by the appellants. 8. Regarding Sealing Wax, we observe that the learned Advocate has shown a Sales Tax form reflect the sale of the same to Dilip Enterprises. The learned Advocate has also mentioned that the Tariff rate of duty is nil in respect of Lack falling under sub-heading 13.01.10 of the Schedule to the Central Excise Tariff Act. This aspect has to be looked into by the Adjudicating Authority the these facts were before him at he time of adjudicating the matter. Except the demand on account of sale of sealing wax, the demand of duty upheld. Accordingly, penalty imposed on the appellants reduced to ₹ 1.5 lakh from ₹ 2 lakh to make it clear that it is open to the Adjudicating Authority to collect imposition of duty, while re-adjudicating the matter regarding sealing wax. The penalty on Rohit Enterprises is set aside as it has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Certificate of Posting. All these facts and circumstances were clearly indicative of suppression of material facts by the appellants. 16. The storey developed by the appellants was disbelieved by the Adjudicating Authority holding as under: There are no records in this case available for the period prior to April, 1990 since all the records have been claimed to have been destroyed in a fire accident on 20.4.90. The party has contended that this was a genuine accident and due intimation was sent to various government department including the Central Excise department on 21.04.90. They have further stated that just prior to the fire accident, the Budge day stock taking and annual stock taking had been conducted in March 1990 and nothing adverse was noticed, the department, on the other hand, has expressed doubts or this version of the party in view of non-receipt of any intimation of fire, non-submission of documents despite repeated queries and the report of the sector officer who had investigated the fire accident and found that neither was the fire brigade called nor was the furniture of the party damaged. It observe that the basic purpose of the department's invest ..... X X X X Extracts X X X X X X X X Extracts X X X X
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