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TMI Blog2022 (9) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... by the manufacturer without payment of central excise duty. It is submitted that during the period 1st April, 2004 to 6th July 2004, Respondent-Company had cleared 1687585.511 kilograms of yarn manufactured at their factory without payment of the duty as well as without any payment to the six job workers for manufacture of grey fabrics and its clearance was from their premises. It is submitted that further investigation revealed that out of six job workers, one job worker, viz., M/s. A A Textiles, Sachin, Surat was not in existence, two job workers, viz., M/s. Rama Filaments Pvt. Ltd., Jolwa, Surat and M/s. Geena Synthetics Pvt. Ltd., Karanj, Surat were not having any machinery to manufacture grey fabrics and their claim that they had got job work manufacture done could not be established from records as well as from statements of the transporters who claimed to have transported the fabrics from their premises to buyers of the fabrics. It is submitted that one job worker M/s. Mansa Synthetics Pvt. Ltd., Surat failed to produce any documents in support of manufacture of fabrics and its transportation to the customers of Respondent-Company and two job workers M/s. Micro Polyester Pv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereunder :- "15. We find that only on the basis of above allegations, it cannot be said that the Appellant did not get manufactured the fabrics and instead diverted the yarn in the market. No single evidence has been adduced by the Revenue to show that the Appellant had cleared yarn from their factory for sale as such and thereby evaded central excise duty. Not a single buyer of yarn has been identified by the Revenue nor there are any statements of the employee, authorized signatory or the director of the Company that the Appellant had cleared any yarn clandestinely and it is coupled with the fact that no consideration has shown to have been received by the Appellant. There are no evidences of transportation of yarn from the Appellant's factory or its diversion. It is a settled law that the allegation of clandestine removal should be based upon clinching evidences whereas in the present case, not a single evidence of clearance and sale of Yarn by way of any evidence in the form of clearance of yarn, identification of buyers, receipt of consideration and any single paper supporting the allegation of the revenue has been found. In case of CCE, Rajkot Vs. Kalyan Glaze Tiles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue's reliance on the statement of the partner is also not justified in as much as apart from the fact that there is no corroboration to the said statement, it is seen that the partner has deposed in the said statement that anything showing clandestine removal if found, they will pay the duty. The language used does not inspire confidence to the effect that the partner has admitted the clandestine removal. 16. Further the judgments cited by the Appellant are on the same ground that charges of clandestine removal are not sustainable without corroborative evidence. The revenue could not produce any evidence or removal and sale of POY and hence the demand on alleged removal of same does not sustain. Thus as per our above findings and observations, we are of the view that the demand against the Appellant concern is not sustainable. We thus set aside the impugned order and allow the appeal filed by the Appellant concern with consequential reliefs, if any. The appeals filed by co- appellants are also allowed for the same reasoning." 8. Aggrieved by the aforesaid order of the CESTAT, the Appellant-Revenue is in Appeal proposing the following substantial question of law :- "Whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontrary to the record and deserve to be set aside. 11. Learned Standing Counsel has sought to rely upon the judgment in the case of Collector of Customs, Madras & Others Vs. D. Bhoormull, 1983 E.L.T. 1546 (S.C.) and draws our attention to Paragraphs 30 and 31 thereof in support of her contentions :- "30. It cannot be disputed that in proceeding for imposing penalties under clause (8) of Section 167, to which Section 178-A does not apply, the burden of proving that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in all criminal or quasi-criminal proceedings, where there is no statutory provision to the contrary. But in appreciating its scope and the nature of the onus cast by it, we must pay due regard to other kindred principles, no less fundamental, of universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and as Prof. Brett felicitously puts it - "all exactness is a fake". El Dorado of absolute Proof being unattainable, the law, accepts for it, probability as a work ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that these are findings of facts by the Tribunal and cannot be faulted. He submits that the question framed is a question of fact and not of law and therefore the Appeal deserves to be dismissed. 14. We have heard Ms. Maya Majumdar, learned Standing Counsel for the Appellant-Revenue and Mr. Jas Sanghavi, learned Counsel for the Respondent. 15. Before proceeding further, it would be useful to refer to Section 35G of the Central Excise Act, 1944 which is quoted as under :- "35G. Appeal to High Court. - (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law. (2) The Commissioner of Central Excise or the other party aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-Section shall be - (a) filed within one hundred and eighty days from the date on which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of appeals under this Section." (Emphasis supplied) 16. It is clear from the above Section that an appeal shall lie against the order of the Appellate Tribunal if the High Court is satisfied that the case involves a substantial question of law. 17. The Revenue appears to be agitating factual aspects in the matter. A perusal of the Tribunal order indicates that the Tribunal after having heard both sides and after having perused the case records has given a fact finding on the issues raised on behalf of the Appellant-Revenue. It has found that in the present case the fabric was shown to have been manufactured from six job workers, viz., M/s. Rama Filament Pvt. Ltd., M/s. Geena Synthetics Pvt. Ltd., M/s. A. P. Textiles Ltd., M/s. Mansa Synthetics Pvt. Ltd., M/s. Micro Polyester Pvt. Ltd. and M/s. Good Luck Synthetics Ltd. 18. Further, it has been found by the Tribunal that Respondent-Company before sending the goods for job work filed intimation with the Department as required under the Central Excise Rules, 2002 and that the copies of the said intimation had been annexed to the Appeal before the Tribunal. The Tribunal has given a finding that it is undisputed that the Depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Yarn supplied by the Appellant and that no evidence has been adduced to the effect that the Respondent-Company had clandestinely removed the yarn from their factory for sale by evading central excise duty. On these factual findings, the Tribunal has dismissed the Appeal. 20. In our view, all the factual aspects raised on behalf of the Revenue, appear to have been answered by the Tribunal. Before us, the Revenue has not been able to controvert any of these findings nor is there any material shown to us that demonstrates anything to the contrary. 21. The decision in the case of Collector of Customs, Madras & Others (supra) relied upon by the learned Counsel for the Revenue, in our view, would therefore not assist the case of the Appellant-Revenue. 22. These are all findings of fact by the final fact finding Authority viz. the CESTAT which cannot be faulted with. Besides, even the question as framed does not propose a question of law but is a question of fact which cannot be gone into by this Court. There is also no perversity demonstrated. In the circumstances, neither the Appeal nor the question as framed raises any substantial question of law. 23. There is therefore no merit in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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