TMI Blog2011 (6) TMI 985X X X X Extracts X X X X X X X X Extracts X X X X ..... aid search, a Show Cause Notice was issued demanding duty amounting to ₹ 1,42,89,792/- allegedly on the ground of clandestine removal of the goods, without payment of Central Excise Duty and without raising the Central Excise Invoices in connivance with one M/s. Shiv Processors and others. In the said Show Cause Notice dated 18-1-2006, demand was also raised for the penal interest and penalty under the Central Excise Act and the Central Excise Rules. 4. After due adjudication, Order was passed on 31st January, 2007. Being dissatisfied by the said order, the appellant and others, preferred an appeal before the Commissioner by raising various contentions and all the Appeals have been decided by the Order dated 9th September, 2008. Again, application of rectification was moved before the CESTAT. Vide its order dated 17th December, 2008 [2009 (236) E.L.T. 96 (Tri.-Ahmd.)], the Tribunal rejected the same. What is in challenge before this Court is the Order of ROM as well as the order passed on 9th September, 2008 by the CESTAT, proposing the following questions of law. A. Whether the Tribunal was justified in upholding the charge of clandestine removal despite th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present appellant, and therefore, it has prejudiced case of the appellant gravely. He urged before the Court to set-aside the order of Tribunal and/or to remand the matter back to the Tribunal for reconsidering all the contentions which have not been considered by it. 7. As against that, Learned Counsel respondent-Department urged this Court that Mr. Motwani has stuck to the version that re-warehousing certificate was not received. He shall be paying the duty, the certificate if is found to have been obtained fraudulently as contended by Appellant. He further agreed that the same has no value in the eyes of law as per the detailed discussion in Order-in-Original of the said certificate. He also further argued that all the contentions raised by the petitioner before both the authorities have been duly adjudicated and therefore, no ground can be sustained in allowing the Appeal. 8. On hearing both the sides and duly considering the record placed before this Court, for the reasons given hereinafter, this Appeal deserves to be dismissed. 9. As mentioned hereinabove, Appellant M/s. Aakash Fabrics [under CT-3 certificates] was entitled to procure Partially ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07 clearly held that such certificate was obtained fraudulently. While giving the findings, if the authority expressed its opinion and gave its reasonings in the words mentioned in the Show Cause Notice, that ipso facto would not sustain the allegations of non-application of mind. In the words of the Commissioner, Central Excise Customs on this issue of re-warehousing : Further, the recipient 100% EOUs, have obtained the re-warehousing certificates fraudulently from the jurisdictional CE range office without any physical receipt in collusion/connivance with M/s. Aakash, which were produced to the Central Excise Authority in-charge of M/s. Aakash, as evidence of receipt of the goods by such 100% EOUs. However, in fact the raw materials were cleared to the domestic market by M/s. Aakash in a fraudulent manner and the sale proceeds were thereafter distributed amongst all the noticees. It has been revealed that the unit has been diverting the duty free raw material into the open market. The fact that the goods were not warehoused in M/s. Shiv Processors has been admitted by the partner of the unit, in his statements recorded on different occasions. He has also admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, in clear breach of the provision of Central Excise Act. The entire issue has been dealt with appreciating evidence in cumulative manner. In the words of Tribunal : In a nutshell, we hold that cumulative reading of and reliance upon the statement [of] Shri Kaniya Lal Gautam and Shri Shyam Sunder Sihotia, Partner of M/s. Shiv Processors and statement of Shri Jayprakash Motwani, statements of transporters showing non-transport of the goods from the factory of M/s. Shiv Processors to M/s. Neeraj Exim Pvt. Ltd. the scrutiny of the seized records from the premise of M/s. Shree Ram Synthetics and statement of Shri Pawankumar Bansal, non-working condition of machines, the electricity bills showing less consumption, all constitute substantial evidence to hold that the duty free POY received by the appellant was not actually put to use for manufacture of goods to be exported but was diverted in the local market. We accordingly, uphold the impugned order, insofar the same relates to confirmation of demand of duty and interest against M/s. Akash Fabrics and imposition of penalty upon them. Inasmuch as penalty to the extent of 100% stands imposed upon M/s. Aakash Fabrics we do not ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
