TMI Blog2017 (11) TMI 1103X X X X Extracts X X X X X X X X Extracts X X X X ..... witnesses who are the employee of the company, we are in complete agreement with the view taken by the Tribunal. No substantial question of law arises. Appeal dismissed - decided against appellant. - D. B. Central/Excise Appeal No. 69 , 70/ 2017 - - - Dated:- 19-9-2017 - K. S. Jhaveri And Vijay Kumar Vyas, JJ. For the Appellant : Mr. Kinshuk Jain JUDGMENT Heard on application (26168) filed in Excise Appeal (Excia) No.70/2017 to waive the defect/s.The application (26168) is allowed and the defect/s pointed out by the office are waived. 1. In both these appeals, common question of law and facts are involved therefore, they are decided by the common judgment. 2. By way of these appeals, the appellant has challenged the judgment and order of the Tribunal whereby Tribunal has allowed the appeal of the assessee reversing the view taken by the original authority imposing the liability of payment of excise and penalty. 3. Learned counsel for appellant has framed in Excise Appeal No.69/2017 the following substantial questions of law:- (a) Whether the Hon ble CESTAT is correct in holding that confirmation of demand of duty on impugned goods was not sustainab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recovery from them along with interest leviable under Section 11AB/11AA of the Act ibid. (ii) I impose under Section 41 AC of the Act ibid read with Rule 19 of the Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules, 2010, a penalty of ₹ 3,17,41,935 ( Rupees three crore seventeen lacs forty one thousand nine hundred and thirty five only) on M/s Goyal Tobacco Co. P Ltd., D-21, Krishnapuri, Old Ramgarh Mod, Jaipur. However benefit of reduced penalty of 25% as per proviso to Section 11 AC, is available to them subject to the condition that Central Excise Duty amounting to ₹ 3,17,41,935/- (including cess and other levies as applicable) and the interest payable thereon is paid within thirty days from the date of communication of this order andfurther subject to the condition that the benefit of reduced penalty (25% of ₹ 3,17,41,935/-) shall be available if the amount of penalty so determined has also been paid within the period of thirty days from the date of communication of this order. (iii) I order under Rule 18(1) of the Chewing Tobacco and Un-manufactured Tobacco Packing Machines (Capacity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly sustainable as cross examination of witnesses was not allowed by the adjudicating authority whereas the assessee had not claimed that statements of said persons were factually wrong or they had any bias or malice towards the assessee and cross examination of such persons would not have reduced the weight of evidentiary value of their statements. 7. Counsel for the appellant contended that the Tribunal has seriously committed an error in holding as under:- It appeared that an attempt was made by the noticee to prove that the seized three pouch packing machine were not in working condition and could not produce the notified goods. On request of the noticee photography of the seized machines was carried out under panchnama dated 13.7.2011. It appeared from the said photographs of the seized machined as well as Panchnama to the proceedings carried out on 13.7.2011 at the time of said photograph that machines were not in dismantled or scrap condition. If they are found cleared in a factory where a packing machine is installed irrespective of the fact whether it is use or not, or is in working condition or not. It appeared that this scheme is a self contained compounded l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cked by Sh. Dinesh Jogi under the guidance of Sh. Pramod Sharma. 9. Counsel for the appellant has relied upon the following decisions of the Supreme Court in Surjeet Singh Chhabra vs. Union of India and Ors., decided by the Supreme Court on 25.10.1996 which is as under:- It is contended by the learned counsel for the petitioner that the petitioner is entitled to crossexamine the Panch witnesses and the Seizing Officer of the goods seized in contravention of the FERA Customs Duty Act and that the opportunity has not been given. Therefore, it is violative of natural justice. It is true that the petitioner had confessed that he purchased the gold had brought it. He admitted that he purchased the gold and converted it as a Kara. In this situation, bringing the gold without permission of the authority is in contravention of the Customs Duty Act and also Fera. When the petitioner seeks for cross-examination of witnesses who has said that the recovery was made from the petitioner necessarily an opportunity requires to be given for the cross-examination of the witnesses as regards the place at which recovery was made. Since the dispute concerns the confiscation of the j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied upon the decision in case of M/s Hans Steel Rolling Mill vs. Commnr. Of Central excise, Chandigarh, Civil Appeal No.2715/2003 decided on 10.03.2011, which reads as under:- It is thus well settled law that strict rules of the Evidence Act, and the standard of proof envisaged therein do not apply to departmental proceedings or domestic tribunal. It is open to the authorities to receive and place on record all the necessary, relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act. The material must be germane and relevant to the facts in issue. In grave cases like forgery,fraud,conspiracy, misappropriation, etc. seldom direct evidence would be available. Only the circumstantial evidence would furnish the proof. In our considered view inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. The mind is prone to take pleasure to adapt circumstances to one another and even in straining them a little to force them to form parts of one connected whole. There must be evidence direct or circumstance to deduce necessary inference in proof of the facts in issue. There can be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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