TMI Blog2017 (3) TMI 773X X X X Extracts X X X X X X X X Extracts X X X X ..... 52294, 52334-52336, 52364, 52448 and 52509 of 2016 - A/52172-52180/2017-EX[DB] - Dated:- 8-3-2017 - Ms. Archana Wadhwa, Member (Judicial) And Shri B. Ravichandran, Member (Technical) Shri R.K. Hasija, V. Swaminathan, Kumar Vikram and Puneet K. Ranjan, Advocates for the appellants Shri R.K. Manjhi, Authorized Representative (DR) for the respondent ORDER Per. B. Ravichandran These 9 appeals are against common impugned order dated 12/05/2016 of Commissioner of Central Excise, Alwar. The main appeal is by M/s Rathi Bars Limited. Two appeals are by Directors of the said company, against personal penalty imposed on them. The remaining six appeals are by different companies involved in manufacture of raw material (MS Ingots) alleged to have been supplied without accounts to M/s Rathi Bars Limited. The facts of the case are that the Commercial Tax Department of the Government of Rajasthan conducted certain survey and investigation, in March 2003, with reference to non-payment of sales tax for the year 2001-2002 on the goods (MS Bars, Mis- rolls, MS Scrap) sold by the main appellant, M/s Rathi Bars Limited. During the course of investigation, the Commercia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order was passed on 12/05/2016. Thus, there is a delay of almost 10 years in passing this order. No reason was mentioned for such a long delay. The adjudication is in violation of Board s instruction to issue orders within one month of the date of personal hearing. Reliance was placed on the decision of Hon ble Bombay High Court in the case of Shirish Harshavadan Shah vs. DD, Enforcement Directorate reported in 2010 (254) E.L.T. 259 (Bom.) and in Lanvin Synthetics Private Ltd. vs. Union of India reported in 2015 (322) E.L.T. 429 (Bom.) to submit that such long and unexplained delay will vitiate the proceedings ; (ii) the demand proceedings are entirely based on assessment order dated 10/08/2004 of the Assistant Commissioner, Commercial Taxes Department, Jaipur. The same was received by the Central Excise Department through Income Tax Department. No action was taken by Income Tax Department. The sales tax assessment was set aside by Rajasthan Tax Board vide order dated 10/09/2007 on assessee s appeal. Since, the very basis of Central Excise proceedings are no more available, in view of the sales tax proceedings having been set aside by the Rajasthan Tax Board, there is no m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing grounds :- (a) the records and statements relied upon by the Original Authority have no evidentionary value. The documents recovered from the residence of two ex- employees of the main appellant were reported to have been handed over to them by another person working as Accountant of the main appellant. The author of these records has not been identified. The whole demand is based on assessment order of Commercial Taxes Department. When the case of Commercial Taxes Department has been decided in favour of the main appellant by the Rajasthan Tax Board setting aside the said assessment order, there is no legal basis to sustain the Central Excise demand ; (b) the appellants (manufactures of MS Ingots) were not provided all the documents and basic calculations which supported the Department s case. There is no independent verification of the facts and there is no piece of evidence to indicate any unaccounted manufacture or clearance of MS ingots by these appellants ; (c) the charge of clandestine removal must be corroborated by independent and un-impeachable evidence such as purchase of raw material consumption of excess electricity, transportation and delivery of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ask for cross-examination after 10 years. It is the Original Authority who delayed the adjudication for more than 9 years and no reasons were ever recorded in the impugned order for such delay. We are aware that the impugned order is liable to be set aside only on this reason of unexplained delay of 9 years after completion of personal hearing, to issue orders. Such course of action is well within the legal principles followed by the Tribunal and higher courts. The appellants also relied on many decided cases to press for such relief. However, we would like to also decide the case on merit given the gravity of the charges and the number of persons involved. 6. The Original Authority heavily relied on the documents recovered by the sales tax department during their investigation from the ex-employees of the main appellant. As a matter of further enquiry the department got certain details from RTO regarding the details of vehicle registrations. There upon certain comparisons were made of the registration numbers of the vehicles, between the records maintained by the main appellant and records recovered from ex-employees. It was observed that registration numbers shown for particu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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