TMI Blog2019 (8) TMI 598X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessing authority was in conformity with the law - The ratio relied upon by the Tribunal that it will be governed by the principle of clandestine removal seems to be misplaced in the facts and circumstances of the case. Tax case allowed - decided in favor of Revenue. - Tax Case No. 135 of 2018 - - - Dated:- 5-3-2019 - Shri Ajay Kumar Tripathi, Chief Justice And Shri Parth Prateem Sahu, Judge For the Appellant : Shri Maneesh Sharma, Advocate For the Respondents : Shri Bhisma Ahluwalia And Rahul Tamaskar, Advocates JUDGMENT PER, AJAY KUMAR TRIPATHI, CHIEF JUSTICE 1. Revenue, i.e., the Principal Commissioner, CGST Central Excise, Raipur Chhattisgarh, is in appeal in the present tax case. They are assailing the Final Order No. A/50857-50858/2018-EX(DB) dated 05.03.2018 passed by the Customs, Excise, Service Tax Appellate Tribunal, Principal Bench, New Delhi (for short, 'CESTAT') as well as the order passed in Appeal No. E/51825/2015 and Appeal No. E/52038/2015 arising out of the Order-in-Original No. RPR/EXCUS/000/COM/03-04/2015 dated 29.01.2015. 2. Origin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Respondents-Company. 6. Being aggrieved by the order, an appeal was preferred before the CESTAT which was registered as Appeal No. E/51825/2015 and Appeal No. E/52038/2015. 7. The appellate Tribunal dealt with both the issues jointly and by a common order dated 05.03.2018, allowed the appeal of the private Respondents relying on the principle that if it is a case of clandestine removal clinching evidence in this regard should have been produced by the Revenue. In absence thereof on mere suspicion neither the Excise Duty nor interest or penalty could have been imposed thereon. The Tribunal relied on the ratio rendered in the case of CCE ST, Ludhiana Vs. Anand Founders Engineers 2006 (331) ELT 340 (P H) as well as Continental Cement Company Vs. Union of India 2014 (309) ELT 411 (All.) . 8. While assailing the impugned order of the Tribunal, counsel for the Revenue submits that the Tribunal has seriously erred on relying on a principle in deciding the appeal in favour of the Assessee by totally missing the facts and evidence which had come during the exercise carried out in the factory premises on the two occasions coupled wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : Director, M/s G.P. ispat Pvt. Ltd., 683-693, Urla Industrial Growth Centre, Raipur (C.G.), residing at Preethpal Farm house, V.I.P Road, Raipur, recorded under the provisions of Section 14 of the Central Excise Act, 1944 before the Superintendent (prev.), Central Excise, Hqrs. Raipur on 25/02/2013. In response to your summons dated 25/03/2013, I am appearing before the Superintendent, Central Excise, Hqrs, Raipur to tender my true and correct statement on 25/03/2013. I have been explained the provisions of Section 14 of the Central Excise Act, 1944 whereby the above inquiry is deemed to a judicial proceeding within the meaning of Section 193 and 228 of Indian Penal Code, according to which intentionally giving false evidence or fabricating false evidence, for the purpose of being used in these proceedings, is an offence punishable Under Section 193 of the Indian Penal Code, and intentionally offering insult, or causing any interruption to the Officer sitting in these proceedings, is an offence punishable Under Section 228 of the Indian Penal Code. Having understood the said Section 10 of the Central Excise Act, 1944 and realizing my responsibility hereunder I give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tement sated 12.06.2012 you had expressed your inability to tender any reasons for the shortages of the TMT Bars and M.S. ingots as detected upon physical verifications of the stock undertaken by the Department from 05/06/201 to 11.06.2012 because then you had started looking after the affairs of the company in the capacity of the director for a substantially small period of a week or so and an account of such short incumbency were not in the complete state of knowing things relevant to clearance from the factory. Now that a considerable period has elapsed ever since, what reasons have you assessed or circumstances would you ascribe for the detection of such shortages. Ans:- I am not able to ascertain the reasons for such shortage. Q. No. 5:- On 05.06.2012, the preventive officers of Central Excise conducted physical stock verification of finished and raw materials and have detected shortages of 1055.575 MT of TMT Bar and 16.915 MT of M.S. ingots, which initially Shri Rajesh Tripathi, GM, voluntarily admitted in his statement dated 06.06.2012 as also by you in the statement dated 21.06.2012 and instantaneously paid the duty of ₹ 52,27,408/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. The stand of the Revenue, therefore, is th at it is not a case where the Revenue alleged clandestine removal and therefore were obliged to establish the allegation of clandestine removal by the assessee. It was a case of huge shortage of finished products as well as raw materials and lack of any fair explanation by the assessee. The responsible authorities or persons of the Assessee-Company accepted the shortage and volunteered to make good the demand of Excise duty of which a significant amount thereof came to be paid and for payment of the balance amount a plea was taken that since the Company was in financial distress, therefore, further time and indulgence ought to be extended to them. However, instead of sticking to their words and despite time having been granted by the Excise authorities, to the Company, they approached the appellate Tribunal and the Tribunal without taking into consideration the statements and acceptance made by the responsible officers of the Assessee, got taken in by the line of arguments made before it that it was a case of clandestine removal, therefore, onus has to shift upon the Revenue to establish the same on the basis of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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