TMI Blog2008 (7) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... i J.D. Shah, for the Appellant. Shri R.J. Oza, for the Respondent. [Judgment per : H.N. Devani, J. (Oral)].- The appellant-assessee had initially proposed the following questions: "(i) Whether Hon. Tribunal can reverse/annul the decision of Com. (A) under the provisions of Section 35 (c) (1) of the Act, without giving the reasons for such reversal/annulment and without dealing with the grounds on which the Hon. Commissioner (A) allowed the appeal? (ii) Whether letter of broker demanding commission for 'Sauda' (agreement to sell) booked by him can be admitted under Section 36A of the Act and other provisions of law, as evidence to substantiate the allegation of clandestine removal of the goods when no acceptance was given or goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Commissioner (Appeals), Surat available on record? (ii) Whether Hon. Tribunal can treat 'Sauda' (Agreement to sell) as sale of goods when agreement to sell was not accepted and there was no delivery of the goods? (iii) Whether letter of broker demanding commission for Sauda (agreement to sell) booked by him can be accepted as evidence to substantiate the allegations of clandestine removal of the goods when no acceptance was given or goods against the said agreement to sell was delivered? (iv) Whether Hon. Tribunal can avoid comments on the important legal points taken in the order-in-appeal by Hon. Commissioner (Appeals) and reversing his decision without any reasons? Can this order be called speaking order and allowed to sus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers, Vadagai, Bombay addressed to the appellant unit showing the details of goods and the names of the parties. The partner also stated that the two papers showed the details of sale of 2:4 DNCB to different parties by the unit through the broker on cash basis. 4. In the follow-up action, the office premises of M/s. Turakhia Brothers were also searched and the statement of the proprietor was recorded. Statements of persons connected with the units to which the excisable goods were supplied, were also recorded. Subsequently in connection with the irregularities disclosed during the search, show cause notice came to be issued. The adjudicating authority held that the charges levelled in the show cause notice against the appellant stood pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... auda' (agreement to sell) made with different parties for their goods. These details are saudas and not sale, as has been presumed by the Tribunal. It is, accordingly, urged that the Revenue has not adduced sufficient and concrete evidence to make out a case of clandestine removal, hence, the appeal deserves to be admitted. 7. As can be seen from the facts noted hereinabove, the appellant has called in question the order dated 18-3-2005 passed by the Tribunal made in the appeal filed against the order of the Commissioner (Appeals) as well as the order dated 5-6-2007 passed by the Tribunal on the application for rectification of mistake. Insofar as the order dated 18-3-2005 is concerned, this is the second round of litigation, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The broker dearly states that he sent the bills for his commission. (12) The tact that there are discrepancies in the ledger of the broker does not lead to inference that the goods have not been removed from the appellant's premises. The appellant wants to prove his innocence on the basis of some factual errors in the ledger of the broker. It is clearly unacceptable. (13) The Revenue is right in holding that in a case of clandestine removal, it is not necessary for the Department to prove its case to the hilt. Incriminating documents, statements recorded and other evidence of shortage of raw materials amply establish that there is clandestine removal in this case." 9. As can be seen from the findings recorded by the Tribunal, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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