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2017 (11) TMI 1103 - HC - Central ExciseClandestine removal - Whether the Hon ble CESTAT is correct in holding that confirmation of demand of duty on impugned goods was not sustainable merely on the basis of presence of machines and certain statements of laboureres and accountants whereas there were evidences in form of verification and still photography of machines and confessional statement of Shri Rajesh Goyal, Director? - maintainability of appeal - section 35-G of CEA. Held that - this appeal is under 35-G where it will be difficult for us to reverse the finding of fact arrived at by the Tribunal that witnesses in the panchnama were not examined by the Commissioner of Excise - The fact which has been recorded by the Tribunal is a finding of fact and being last fact finding authority, it could not be disturbed. Cross-examination of witnesses - Held that - In view of the finding given by the Tribunal and not cross-examination of witnesses and panch witnesses and the other witnesses who are the employee of the company, we are in complete agreement with the view taken by the Tribunal. No substantial question of law arises. Appeal dismissed - decided against appellant.
Issues Involved:
1. Legality of demand confirmation based on machines' presence and statements. 2. Legality of setting aside the demand and penalty due to lack of cross-examination. Issue-wise Detailed Analysis: 1. Legality of Demand Confirmation Based on Machines' Presence and Statements: The appellant questioned whether the Tribunal was correct in holding that the demand of duty on impugned goods was unsustainable merely based on the presence of machines and certain statements from laborers and accountants. The Tribunal had allowed the appeal of the assessee, reversing the original authority's decision, which imposed excise liability and penalty. The Tribunal noted that the presence of machines and statements alone were insufficient for confirming the duty demand. The Tribunal emphasized the need for corroborative evidence, which was not legally sustainable as cross-examination of witnesses was not allowed by the adjudicating authority. The Tribunal's observations highlighted that the seized machines were not in dismantled or scrap condition, but this alone did not justify the duty demand without proper corroborative evidence. 2. Legality of Setting Aside the Demand and Penalty Due to Lack of Cross-Examination: The appellant contended that the Tribunal erred in setting aside the demand of ?3,17,41,935/- and the penalty of ?50,00,000/-. The Tribunal held that the statements of concerned persons, used as corroborative evidence, were not legally sustainable as cross-examination of witnesses was not permitted. The Tribunal found that the statements were not factually wrong or biased against the assessee, and cross-examination would not have reduced their evidentiary value. The Tribunal's decision was based on the principle that the failure to allow cross-examination violated the principles of natural justice. Tribunal's Observations and Order: The Tribunal confirmed the Central Excise duty of ?3,17,41,935/- under Section 11A (2) of the Central Excise Act, 1944, along with interest under Section 11AB/11AA. A penalty of the same amount was imposed under Section 41 AC read with Rule 19 of the Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules, 2010. The Tribunal also ordered the confiscation of 72,000 pouches of 'Laxmi' brand unmanufactured chewing tobacco, with an option to redeem them on payment of a fine. Additionally, a penalty of ?50,00,000/- was imposed on the Director under Rule 26 of the Central Excise Rules, 2002. Appellant's Contentions and Reliance on Precedents: The appellant argued that the Tribunal incorrectly disregarded evidence such as the presence of machines and statements from laborers and accountants. The appellant cited Supreme Court decisions in Surjeet Singh Chhabra vs. Union of India and Ors., Naresh J. Sukhawani vs. Union of India, and M/s Hans Steel Rolling Mill vs. Commissioner of Central Excise, Chandigarh, to support the contention that strict rules of evidence do not apply to departmental proceedings and that statements made before customs officials can be substantive evidence. High Court's Conclusion: The High Court, under Section 35-G, found it challenging to reverse the Tribunal's fact-finding that witnesses in the panchnama were not examined by the Commissioner of Excise. The Tribunal's findings were considered final, and the High Court agreed with the Tribunal's view that the lack of cross-examination of witnesses and panch witnesses violated principles of natural justice. Consequently, no substantial question of law arose, and both appeals were dismissed. Final Judgment: Both appeals were dismissed, and the Tribunal's decision was upheld. No substantial question of law was found to warrant interference with the Tribunal's findings.
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