TMI Blog2018 (9) TMI 1060X X X X Extracts X X X X X X X X Extracts X X X X ..... - 18-7-2018 - Mr. Kalpesh Satyendra Jhaveri And Mr. Vijay Kumar Vyas JJ. For the Appellant(s) : Mr. Sidharth Ranka For the Respondent(s) : Ms. Archana for Ms. Mahi Yadav JUDGMENT 1. By way of this appeal, the appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has dismissed the appeal filed by the appellant. 2. The counsel for the appellant has framed the following substantial questions of law: 1. Whether the ld. CESTAT has grossly erred in law in ignoring the vital evidences in the form of voluntary statements of the Director and General Manager of the Company and the loose slips recovered by the Department during the search in setting aside the order of the ld. Adjudicating Authority? 2. Whether the ld. Adjudicating Authority grossly erred in law in ignoring the voluntary statements of the Director and General Manager of the Company while dropping the partial demand? 3. Whether the ld. CESTAT has grossly erred in law in setting aside the penalties on the Director and General Manager of the Company who were actively engaged in clandestine removal of the goods? 4. Any other question of law as the Hon ble High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct to the effect that goods covered by kachha parchis were clandestinely cleared without payment of duty. Further, the assessee has also paid the entire duty for the goods covered by 32 slips. These findings of the adjudicating authority have been challenged by the assessee in the present appeals. It is their submission that the goods covered by these seven slips were never despatched from the factory for various reasons. It is their submission that the kachha parchis were initially made for internal use indicating the quantity of material, name of the party, place to which goods to be despatched and other details. Later on, the relevant quantum of goods are identified from the stockyard and loaded into the despatch truck whose number is also included in the kachha parchi. In respect of these seven kachha parchis, the orders placed by the customers have got cancelled and hence no goods were despatched to the parties indicated in the kachha parchi. 8. On going through the impugned order, we note that the adjudicating authority has not given due consideration to the submissions made by the appellant. The allegation of clandestine removal has been upheld in respect of goods mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e following monetary limits below which appeal shall not be filed in the CESTAT, High and Supreme Court: S. No. Appellate Forum Monetary Limit 1. CESTAT ₹. 20,00,000/- 2. High Courts ₹. 50,00,000/- 3. Supreme Court ₹. 1,00,00,000/- 2. This instruction applies only to legacy issues i.e. matters relating to Central Excise and Service Tax, and will apply to pending cases as well. 3. Withdrawal process in respect of pending cases in above forums, as per the above revised limits, will follow the current practice that is being followed for the withdrawal of cases from the High Courts, CESTAT and Commissioner (Appeals). All other terms and conditions of concerned earlier instructions will continue to apply 4. It may be noted that issues involving substantial questions of law as described in para 1.3 of the Instruction dt 17.08.2011 from F No 390/Misc/163/2010-JC would be contested irrespective of the prescribed monetary limits 5. Since with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SC HC CESTAT Total (a) (b) (c) (d) (a) (b) (c) (d) *identified minus filed in Table M **filed minus withdrawn in Table M 5. We are not inclined to interfere in the appeal. Moreso, counsel for the respondent has relied on the decision of this Court in D.B. Central/excise Appeal No. 26/2017, Commissioner of Central Excise V/s Mittal Pigment Pvt. Ltd, decided on 2.5.2018 wherein it has been held as under: 6. Taking into consideration, we are of the opinion that the view taken by the Allahabad High Court is required to be accepted inasmuch as in the statement of Director and laboratory report, there is nothing on record to establish that the manufacturing process has taken place either by way of electricity bills, labour charges, transport charges or any corroborative piece of evidence is available. 6.1 In that view of the matter, the view taken by that tribunal is just and proper and does not require interference. For ready reference, the fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Hon ble High Court in the case of Continental Cement Company (supra) has inter alia observed as under: 13. to prove the allegation of clandestine sale, further corroborative evidence is also required. For this purpose no investigation was conducted by the Department . 14 15. When there is no extra consumption of electricity, purchase of raw materials and transportation payment, then manufacturing of extra goods is not possible . 7. Considering above discussions and the case laws cited above, we conclude that the Revenue has failed to reasonably prove suppressed production and clandestine clearance on the part of the appellants. Consequently, the impugned order in respect of confirmation of duty for alleged suppressed production, and imposition of fine and penalty on the appellant No. 1 and imposition of personal penalty of ₹ 40 lakhs on Shri Agarwal who is appellant No. 2 are hereby set aside. The appellants will get the relief accordingly. 8. The impugned order has confirmed another Central Excise duty of ₹ 1,31,898/- on short found inputs which was deposited by the assessee and was appropriated to the government account. In this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doubt the correctness of the material. In view thereof the explanation furnished by the manufacturer was accepted by the Tribunal and the levy of the duty as well as the penalty was deleted. 6. The aforesaid narration clearly goes to show that findings reached by the Tribunal are findings of fact and does not give rise to question of law. 7. Accordingly, the appeal fails and is hereby dismissed. 6. He has also relied upon the decisions of Madras High Court in: 1. D.V.Kishore vs. Commr. Of Cus. (SeaportsImports), Chennai, 2017 (350) E.L.T. 527 (Mad.), wherein it has been observed:- 26. It is also the findings on the part of the Tribunal to state that there was no effective and reliable denial on the part played by the appellant either in the proceedings before the Commissioner or before the Tribunal. 27. In fact, the appellant had started retracting his statement of confession itself from the beginning and when that being so, such a finding as has been given by the Tribunal, would not stand in the legal scrutiny. The further reasons given by the Tribunal is that, even though the only defence apparently was that the statements had been retracted, the seizure of gold a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the enquiry into offences, it is desirable that the findings and orders of the Criminal Courts should be treated as conclusive in proceedings before quasijudicial Tribunal like the Transport Authorities under the Motor Vehicles Act. 3. Commissioner of Central Excise vs. Omkar Textile Mills Pvt. Ltd., 2010 (259) E.L.T. 687 (Guj.), wherein it has been observed:- 2. The facts of the case stated briefly are that the Respondent is engaged in the business of processing of cotton fabrics and man made fabrics falling under Chapter 52, 54 and 55 of the First Schedule to the Central Excise Tariff Act, 1985. The factory premises of the Respondent came to be searched on 9-7- 2003. According to the Appellant, during the course of search, on physical verification of finished processed cotton fabrics and man made fabrics at the various stages of processing i.e., bleaching, dyeing, printing, finishing, packed in HDPE bags on comparison with recorded stock, a shortage of 175178 L. mtrs. of processed MMF valued at ₹ 31,53,204/- involving Central excise duty of ₹ 3,15,329/- was detected. Accordingly, a panchnama came to be drawn recording the said facts. Statement of a Director o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the adjudicating authority. The findings of the adjudicating authority stand confirmed by both the appellate authorities. Learned Counsel for the Appellant is not in a position to point out any evidence to the contrary, in support of the case of the revenue as regards shortage of material or clandestine removal of goods. Thus, the conclusion arrived at by the Tribunal is based solely upon concurrent findings of fact recorded by all the authorities below. In absence of any perversity being pointed out in the findings recorded by the Tribunal, it is not possible to state that the conclusion arrived at by the Tribunal is, in any manner unreasonable so as to warrant interference. A case of clandestine removal of goods has to be made out on facts which find corroboration from the material on record. In absence of any corroborative material, no demand could have been raised merely on the basis of a statement recorded under Section 14 of the Act, which had been subsequently retracted. 4. Continental Cement Company vs. Union of India, 2014 (309) E.L.T. 411 (All.), wherein it has been observed:- 12. Further, unless there is clinching evidence of the nature of purchase of raw material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber of inventory which was there at the site. Nothing was brought on record, in any manner, to show that to manufacture such a large amount of 14,25,900 pieces, there was material which had been consumed since neither any relevant record had been shown to show that electricity had been consumed or labour had been utilized to manufacture the said quantity. Neither the fact of purchase of raw material from the vendors or the sale to the consumers was brought on record. In the absence of any corroborative evidence, the levy of such a huge demand was, thus, totally arbitrary and has been rightly set aside. 9. It is apparent that the demand was raised and a sum of ` 14 lacs was taken on the same day and in order to justify the said demand which had been encashed, a show cause notice was issued on 25.04.2006 thereafter. Thus, not only the demand was confirmed but even the penalty had been imposed, which was without any basis. The confirmation is not only on the manufacturer but also on the Proprietor. Such action which had illegally created the demand without even meeting the defence of the manufacturer, has, thus, been rightly set aside by the Commissioner (Appeals) and upheld by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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