2015 (1) TMI 757 - HC - Central Excise

Exercise of Jurisdiction u/s 35 - Held that - Jurisdiction Section 35G can be exercised only if the ingredients thereof are satisfied. That jurisdiction is not to be exercised to re-appreciate or re-appraise a finding of fact unless it is demonstrated to be perverse or vitiated by an error of law apparent on the face of record. In this case, what has happened is that the adjudicating authority as well as the Tribunal while dealing with the contentions raised and particularly that the private records cannot be relied upon for suppression of production and clandestine removal of goods held that the adjudicating authority had examined the issue at great length. The categorization was done. The Statement of Mr. Vijay Makhija, Managing Director of the Appellant and which was recorded on several dates has been referred to. Thus, while referring to that statement the Tribunal held that there is suppression of production of plastic pipes which have been manufactured by the Appellants. The suppression is found in their statutory accounts. These goods were cleared without payment of Excise duty and issuance of invoice. Therefore, the admission is culled out or derived from suppression and which is apparent from the statement of the Managing Director. Therefore, the Tribunal opines that as error in the private records were detected but, were not accounted in the RG Register. The authorities did not commit any error in examining and relying upon the record maintained by the department. Moreover, the suppression has been concluded from a comparative analysis and which also does not suffer from any serious infirmity. Thus, this is not a case where the order can be said to be perverse or based on no material nor it can be termed as vitiated by an error of law. There are concurrent findings on record. They do not require any interference in Appellate jurisdiction. - Decided against assessee.

Summary

Issues:
Challenging order of Central Excise and Service Tax Appellate Tribunal; Adverse order by adjudicating authority; Categorization of records; Allegations in show cause notice; Jurisdiction under Section 35G; Suppression of production and removal of goods; Examination of issue by Tribunal; Suppression found in statutory accounts; Excise duty evasion; Relying on private records; Comparative analysis; Concurrent findings.

Analysis:

The Appellants challenged the order of the Central Excise and Service Tax Appellate Tribunal, which dismissed their Appeal against the adverse order of the Commissioner of Central Excise, Pune-II. The adjudicating authority, upon remand, passed an adverse order that was confirmed by the impugned order.

The Appellants argued that the categorization of records by the adjudicating authority was erroneous, as it found fault where private records showed more quantity than the statutory records. They contended that the mis-match between the records invalidated the order, enabling the Court to interfere in its Appellate jurisdiction. However, the Court rejected these contentions, stating that the jurisdiction under Section 35G can only be exercised if the findings are proven to be perverse or tainted by an error of law.

The Tribunal, in its examination, found that there was suppression of production and removal of goods without payment of Excise duty based on a comparative analysis of the records. The Tribunal relied on the statement of the Managing Director, which revealed the suppression found in the statutory accounts. The Court held that the authorities did not err in relying on the department's records and that the findings were based on substantial evidence, including statements of relevant officers. The Court concluded that the order was not perverse or based on no material and did not suffer from any legal error, as there were concurrent findings on record, leading to the dismissal of the Appeal.

In summary, the Court upheld the Tribunal's decision, emphasizing that the findings were based on a thorough examination of the records and statements, and there was no basis for interference in Appellate jurisdiction. The Appeal was dismissed without costs.