2009 (11) TMI 966 - AT - Central Excise

Summary

Issues:
1. Allegation of clandestine removal of excisable goods by DTPL
2. Validity of penalties imposed on various parties
3. Reliance on previous order by Commissioner (Appeals)

Analysis:
1. The case involved allegations of clandestine removal of goods by the main appellant, M/s. DTPL, which led to the seizure of a consignment of gutkha. The Order-in-Original passed by the Dy. Commissioner demanded duty amounting to &8377; 3,33,000 found to be evaded by DTPL, along with various penalties including under Rule 173Q and Rule 209A. The Commissioner (Appeals) set aside penalties on M/s. Rafiq Brothers but confirmed penalties on other parties. The main contention raised was that the findings in a previous order by the Commissioner (Appeals) had not been overturned and hence, the penalties imposed were not sustainable in law.

2. The learned counsel for the appellants argued that the detailed findings in the previous Order-in-Appeal No. 148/2004, dated 27-9-2004, had concluded that the charge of clandestine removal against DTPL was not substantiated. As the department did not appeal against this order, it was contended that the penalties confirmed in the impugned order were not legally valid. On the other hand, the SDR contended that the impugned order was based on reliable evidence, including the seizure of unaccounted raw materials at DTPL.

3. The Tribunal, upon careful consideration, observed that the Commissioner (Appeals) had extensively analyzed the case in the previous order and found that the charge of clandestine removal against DTPL was not proven. This decision had been accepted by the department, making it untenable for the impugned order to contradict these findings. Therefore, the Tribunal held that the penalties and demands imposed on DTPL and others were not sustainable. Consequently, the impugned order was set aside, and the appeals were allowed with any necessary consequential relief.

This comprehensive analysis of the judgment highlights the key issues of clandestine removal, penalty imposition, and the reliance on previous orders, providing a detailed overview of the legal proceedings and the Tribunal's decision.