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2015 (11) TMI 148 - MADRAS HIGH COURT

2015 (11) TMI 148 - MADRAS HIGH COURT - 2015 (326) E.L.T. 113 (Mad.) - Validity of revenue appeal - submissions of the appellant herein that the formation of opinion by the Commissioner before filing of appeal by Revenue is mandatory under Section 35B (2) of the Central Excise Act - Clandestine removal of goods - Held that:- Any Central Excise Officer may exercise the powers and discharge the duties conferred or imposed by or under the Act or these Rules on any other Central Excise Officer who i .....

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ed. Nevertheless, with regard to the question of power to file appeal is concerned, it is seen from the record that no such plea was raised before the Tribunal and, therefore, we are not inclined to accept the plea at this stage - it is clear that a prayer has been made to restore the Order-in-Original passed by the Additional Commissioner of Central Excise, wherein the demand of duty invoking the larger period was taken up. The above prayer, in the considered opinion of this Court, protects the .....

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ssee is before this Court by filing the present appeal. Vide order dated 16.11.09, this Court, while admitting the appeal, framed the following substantial questions of law for consideration :- "1) Whether or not the Appellate Tribunal was in error in overruling the submissions of the appellant herein that the formation of opinion by the Commissioner before filing of appeal by Revenue is mandatory under Section 35B (2) of the Central Excise Act, as held by Hon'ble Gujarat High Court in .....

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der :- The appellant/assessee is engaged in the manufacture of chokes, transformers, coils, etc., was visited with a show cause notice by the respondent for contravening various provisions of Central Excise Act. The allegation of the Department in the instant case is that the appellant assessee cleared excisable goods using bogus set of invoices (second/parallel) and further cleared excisable goods using the invoices of dummy unit, viz., Sree Transtechnic (for short 'STT'), which act cam .....

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tatements recorded establish that the entire operation was with clear intent to evade payment of duty and, therefore, the demand of duty for larger period under proviso to Section 11A (1) is justified. Accordingly, the adjudicating authority confirmed the duty demand in the following manner :- "I confirm the demand of duty of ₹ 7,67,362/= (Rupees Seven Lakhs Sixty Seven Thousand Three Hundred and Sixty Two only) on M/s.SVE under Section 11A (2) of the Act. I impose a penalty of ₹ .....

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0/= (Rupees Six Lakhs Fifty Thousand only) paid by M/s.SVE towards the above dues." 4. Aggrieved against the said order of the adjudicating authority, the assessee preferred appeal to the Commissioner (Appeals), who allowed the appeal including the plea of no suppression. The Department, aggrieved by the same, filed appeal to the Tribunal through the Chief Commissioner of Central Excise, Chennai II Commissionerate, inter alia contending vide the reply to the show cause notice dated 8.4.02, .....

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Tribunal accepted the contention of the Department and set aside the order of the Commissioner (Appeals) and remanded the matter to the Tribunal to pass a reasoned and speaking order, both on merits as well as on limitation. The relevant portion of the said order of the Tribunal is quoted hereinbelow :- 8. We have noticed that learned adjudicating authority has examined plethora of evidence in pages 2 to 7 of the Order-in- Original and made his finding considering submissions of the assessee. Al .....

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estine removal, evading duty. He has also brought to record that the assessee has knowingly acted in defiance of law stating to be unaware of consequence thereof. Consequently, duty liability of the assessee was bound to arise with other consequences of law followed. 9. We are surprised to note how the learned Commissioner (Appeals) without evaluating the evidence on record, both oral and documentary, could safely rely on the submission of the assessee when evidence on record self-speak the natu .....

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of buyers and correlation of stock. He further viewed that no statement was recorded from workers. All these suppositions enabled him to grant relief to the assessee. Precisely, we may state that weight of evidence on record was given go bye by the learned Commissioner (Appeals) with scanty regard to the principles of preponderance of probability. 10. The question of time-bar being a mixed question of fact and law, conduct of the assessee shall only decide its motive of evasion of duty to come .....

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ate of the fact, there is no question of any assumption or presumption which are sworn enemies of justice. Therefore, learned Commissioner (Appeals) after granting fair opportunity to both the sides shall properly consider weight of evidence and pleadings of both sides and pass a reasoned and speaking order on both the aspect of merit as well as on limitation issues, which have emanated from cause of action. Aggrieved by the said order, the present appeal is filed by the assessee. 6. Learned cou .....

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formation of opinion by the Commissioner before filing of the appeal, which is mandatory under Section 35B (2) of the Central Excise Act, the appeal filed by the Department is bad and, therefore, the same is liable to be interfered with. 7. Refuting the above submissions, it is submitted by Mr.Vijay Anand, learned standing counsel for the Department that plea with regard to formation of opinion by the Commissioner not having been raised by the appellant/assessee before the Tribunal, the appella .....

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tion cannot be sustained as it has been considered by the Tribunal in extenso and, therefore, no interference is called for with the order passed by the Tribunal. 8. Heard the learned counsel appearing for the appellant/assessee and the learned standing counsel appearing for the respondent/Revenue and perused the materials available on record. 9. From a careful perusal of the order passed by the Tribunal, it is evident that the issue as regards the mandatory requirement for formation of opinion .....

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ised before this Court at this point of time and, accordingly, the said plea raised as a question of law is rejected. 10. Insofar as the contention raised by the learned counsel for the appellant that the Chief Commissioner is not empowered to file an appeal, the answer to the same lies in Rule 3 (3) of the Central Excise Rules, 2002. For better clarity, Rule 3 (3) is extracted hereinbelow :- Rule 3. Appointment and jurisdiction of Central Excise Officers. - (1) The Board may, by notification, a .....

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e Act or these rules on any other Central Excise Officer who is subordinate to him. - 11. A reading of Rule 3 (3) of the Central Excise Rules, 2002, makes it clear that any Central Excise Officer may exercise the powers and discharge the duties conferred or imposed by or under the Act or these Rules on any other Central Excise Officer who is subordinate to him, meaning thereby that the Chief Commissioner, the highest officer in the Central Excise Department is empowered to discharge the duties c .....

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