2008 (7) TMI 376 - HC - Central Excise

Demand and Recovery Clandestine Removal - the Tribunal has after appreciating the evidence on record arrived at certain findings of fact. The reasons stated in the impugned orders are in consonance with the evidence on record. Considering the contents of the letter of the Broker, in conjunction with the other evidence on record, the Tribunal was justified in holding that there is clandestine removal of goods. Even if it were possible to take another view, that by itself would be no ground for intervention by this Court.

Summary

Issues:
1. Tribunal's authority to reverse Commissioner's decision without giving reasons.
2. Admissibility of broker's letter as evidence for clandestine removal.
3. Tribunal's power to pass orders without reasons and after substantial time.
4. Entertaining appeal after order implementation.
5. Rejection of rectification application by Tribunal.

Issue 1:
The appellant questioned whether the Tribunal can reverse the Commissioner's decision under Section 35(c)(1) without providing reasons and without addressing the grounds on which the Commissioner allowed the appeal. The Tribunal reframed the issue, emphasizing the basis for passing orders on assumptions without conclusive evidence to prove clandestine removal. The Tribunal justified its reliance on incriminating documents found at the appellant's premises and the partner's admission of clandestine removal. The Tribunal rejected the appellant's interpretation of the broker's letter, emphasizing discrepancies in the broker's ledger do not disprove removal. The Tribunal held that the evidence established clandestine removal, supporting the Revenue's case.

Issue 2:
Regarding the admissibility of the broker's letter as evidence for clandestine removal, the appellant argued that the letter was not incriminating enough to prove the allegations. The Tribunal disagreed, citing Section 36A of the Central Excise Act, allowing presumptions based on such documents unless proven otherwise. The Tribunal highlighted the partner's admission of removal and rejected the appellant's defense based on the broker's ledger discrepancies. The Tribunal concluded that the evidence, including the broker's letter, statements, and material shortages, established clandestine removal.

Issue 3:
The appellant questioned the Tribunal's authority to pass orders without reasons and after a substantial time lapse. The Tribunal's order dated 18-3-2005 was challenged in the second round of litigation, but the appeal was withdrawn. The Tribunal justified its decision based on facts and upheld the rejection of the rectification application on the grounds that the alleged errors touched on the case's merits. The Tribunal emphasized that considering the appellant's grounds would necessitate reopening the entire case, leading to the rejection of the rectification application.

Issue 4:
The appellant raised concerns about the Tribunal entertaining an appeal after the order was implemented. The Tribunal clarified that the order was based on facts, and challenging it was not feasible. The Tribunal's assessment of the evidence and findings aligned with the record, justifying its decision to dismiss the appeal due to the absence of any substantial legal questions arising from the Tribunal's orders.

Issue 5:
Lastly, the rejection of the rectification application by the Tribunal was challenged by the appellant. The Tribunal maintained that the grounds raised in the application touched on the case's merits and were not apparent errors. Rejecting the application, the Tribunal reasoned that considering the appellant's grounds would require reopening the case entirely, leading to the dismissal of the rectification application.

In conclusion, the High Court dismissed the appeal, affirming the Tribunal's findings based on the evidence and justifying the rejection of the rectification application. The Tribunal's decisions were upheld, emphasizing the establishment of clandestine removal through incriminating documents and partner statements, despite the appellant's challenges regarding the broker's letter and interpretation of evidence.