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TMI Blog2019 (4) TMI 530X X X X Extracts X X X X X X X X Extracts X X X X ..... rmed under provisions of Section 11AB read with Section 11AA and imposed a penalty of Rs. 94,65,315/- under Section 11AC of the Act ibid read with Rule 25 of the Central Excise Rules. 1.2 In the first round, the then Commissioner, Central Excise, Delhi-I vide Order-in-Original No. 143/2005 dated 30.09.2005 had confirmed demand of Central Excise duty to the extent of Rs. 61,42,514/- as against demand of Rs. 94,65,315/- proposed in the Show Cause Notice, dropped the remaining demand amounting to Rs. 33,22,801/- and imposed penalty of Rs. 61,42,514/- under Section 11AC of Central Excise Act, 1944 read with Rule 25 of Central Excise Rules, 2002 and a separate penalty of Rs. 25,00,000/- under Rule 26 of Central Excise Rules, 2002. The said order was set aside by this Tribunal vide Final Order No 53723/2016 dated 22.09.2016 with directions for de-novo proceedings. Now, in de-novo proceedings learned Commissioner has passed the impugned order dated 29.05.2017 confirming the entire demand proposed in Show Cause Notice and imposed equal penalty. 2.1 The facts of the case as emanating from the Order-in-Original dated 29.05.2017 and the Show Cause Notice F. No. NZU/INV/46/2001/Pt.RSI dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two orders for supply of single bed mosquito nets from HSCC and procured the goods from and market and from job workers who manufactured the bed nets for him. He also stated that for examination of goods supplied under aforesaid orders, he had authorized Shri Sudhir Agarwal having his office at 15 Sri Ram Road, Civil Lines, Delhi, to offer the goods for inspection and do everything expedient and necessary for execution of said order. Later vide letter dated 19.05.2003 stated, that no manufacturing activity was ever carried out at Wazirabad premises and the same was used only for godown purposes for inspection and inter alia submitted the details of job workers located in Cuttack and East Midnapore as well as details of transportation of goods manufactured by job workers, and the inspection premises in Delhi. On enquiry, the transporters though accepted that the Bilties presented by Appellant were issued by them for transportation of mosquito bed nets from Cuttack/East Midnapore to Delhi, however, could not present corresponding original copies of Bilties. Similarly, on inquiry, the job workers accepted that they had stitched mosquio bed nets for labour charges of Rs. 28/- to Rs. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I, vide Order-in-Original No. 95/DMD/08 dated 30.09.2008 re-adjudicated the case and ordered confiscation of seized goods and imposed penalty on Appellant. Later Commissioner (Appeals) vide Order-in-Appeal dated 10.12.2009 once again upheld learned Assistant Commissioner's aforesaid Order. Aggrieved, Appellant again preferred an Appeal No. E/1069/2010 EX(SM) before this Tribunal and finding merit in Appellant's submissions, this Tribunal vide Final Order No. 54022/2015-SM(BR) dated 21.08.2015 quashed the confiscation and imposition of penalty categorically observing as under: "5. This is the second round of litigation before this Tribunal in the initial ground. This Tribunal vide order dated 20th June, 2006 remanded the matter back to the Original Authority for a fresh decision on the issue regarding letting out of the house by one Smt. Ritu Aggarwal in favour of the Appellant M/s R.S. Industries. In the said order it has also been recorded that Smt. Ritu Aggarwal the owner of the property has specifically stated that the premises in question was let out to M/s Moon Beverage Ltd. and not to M/s R.S. Industries, the appellant, herein. In view of the fact that R.S. Industries were n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... premises, is not sustainable in law. 5.1 We have heard both sides extensively and perused the records including the letter dated 28.01.2019. 5.2 Learned counsel for the Appellant assailed the impugned order mainly on the following grounds. A. The impugned order is unsustainable in law as in terms of Final Order No. 54022/2015 dated 21.08.2015, which has attained finality, Appellant was not in possession of subject premises and did not carry out any manufacturing activity at the said premises and hence there being no manufacturing, no Central Excise duty is leviable on Appellant. B. Learned Commissioner has confirmed the demand in the impugned Order solely on the finding that Appellant in the tender documents declared himself as manufacturer and thus having declared himself as manufacturer he has to pay duty, which in Appellant's respectful submission is patently misconceived and contrary to settled law propounded by this Hon'ble Tribunal in Vasavi Synthetics Pvt. Ltd. versus Commissioner of C. Ex., Visakhapatnam - 2006 (201) ELT 446 (Tri.-Bang.) and Arch Pharmalabs Limited versus Commissioner of C. Ex., Hyderabad - 2005 (182) ELT 413 (Tri.-Bang.) holding that demand of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty amounting to Rs. 94,65,315/- with equal penalty and the Appellant has also assailed the entire demand in this Appeal and thus we do not find force in learned A.R's argument that Appellant's Appeal should have been limited to Rs. 33,22,801/- only especially as Department has not preferred any Appeal questioning the impugned de-novo order. In our considered opinion, earlier order passed in first round of adjudication proceedings having been superseded by present Order-in-Original, the Appeal is maintainable qua the entire amount confirmed in the present impugned order. 5.5 Having held so, we now proceed to examine the sustainability of demand on the facts as available on record and in the light this Tribunal's Final Order No. 54022/2015 dated 21.08.2015 accepted by the Department as legal and proper. 5.6 We observe from the letter dated 28.01.2019 furnished during the course of hearing on 06.03.2019 that the Tribunal's Final Order No. 54022/2015 dated 21.08.2015 has since been accepted and thus the findings recorded therein have become final and binding. We thus find force in the argument of learned counsel that once the issue that the premises was not in possession of Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ries and that she did not know any person named Arun Tibrewal. The aforesaid facts clearly prove that the Department's case is based on presumptions and surmises and demand has been confirmed on presumption and conjectures. 5.8 Learned counsel for the Appellant vehemently argued that though Appellant declared himself as a manufacturer in tender documents to obtain contract but did not manufacture any material but obtained the same form job workers and therefore, he cannot be saddled with duty liability in support of his aforesaid contention, learned counsel relied on following judgments, wherein various benches of this Tribunal held as under: Vasavi Synthetics Pvt. Ltd. Vs. CCE Visakhapatnam - 2006 (201) ELT 446. Clandestine removal - Demand cannot be raised on basis of documents prepared by assessee to obtain higher bank loan - Department ought to have produced evidence with regard to purchase of goods, higher electricity consumption, sale to purchaser, receipt of funds and evidence from transporters - No evidence on record except higher figures shown by appellants in commercial invoices to secure bank loan - Demand set aside. Arch Pharmalabs Ltd. Vs. CCE, Hyderabad-2005(182) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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