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TMI Blog2013 (5) TMI 406X X X X Extracts X X X X X X X X Extracts X X X X ..... ivalent amount of penalty was also imposed upon M/s. Gyscoal Alloys Limited under Section 11AC of the Central Excise Act, 1944. Penalty of Rs. 50,000/- was also imposed upon Shri Viral M. Shah, Director of M/s. Gyscoal Alloys Limited under Rule 26 of Central Excise Rules,2002. The above order in original was upheld by Commissioner (Appeals) under OIA No. 26 to 27/2012(Ahd-III)K.Anpazhakan/Commr(A)/ Ahd dated 31.01.2012, against which these appeals have been filed by the appellants. 4. Heard both sides. 5. It was argued by Shri Paritosh Gupta, Advocate of the appellants that the case should be remanded back to Commissioner (Appeals) who has passed his decision only on the basis of findings given in Para 7 of the order in appeal dated 31.01.2012. He argued that, as per the findings of Commissioner (Appeals), the case is based only on the RTO reports and the admission of the Director. It was emphasized that as per Para 3.1 of the show cause notice dated 28.12.2010, Shri Viral M. Shah, Director of appellant Company has not admitted that the inputs were not received in their factory. He further argued that the only mention made by the Shri Viral M. Shah, Director is that the inputs re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of M/s. Adhunik Ferro Alloys Limited and M/s. Hiren Aluminium Limited (supra). The decision of division bench of this Tribunal in the case of M/s. Hiren Aluminium Limited is dated 12.01.2009, which is contrary to the judgment of the Hon'ble High Court of P & H in the case of Ranjeev Alloys Limited - 2009 (247) ELT 27 (P&H)is delivered on 18.8.2009 and is thus the latest interpretation on the issue. Paragraphs 2 and 3 of this decision are relevant and are reproduced below:- 2. A perusal of the order of the Tribunal shows that a categorical finding has been recorded that inputs could not have been received in the factory of the appellant-assessee in the vehicles mentioned in the invoices. The aforesaid finding is based on the report submitted by the Regional Transport Officer wherein it is certified that the registration particulars belong to the vehicles other than the goods transport vehicles with 10 ton capacity. The appellant-assessee has failed to prove that the goods were brought in the vehicles as mentioned in the invoices. The excuses of the appellant-assessee that gate registers were burnt in some fire and the bills/vouchers indicating the payment to the owner and drive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the effect that the credit taken in such a situation was ever reversed by them voluntarily, without detecting by the department. The action and argument of reversal of cenvat credit by the appellants has to be considered an afterthought. Judgment of Hon'ble High Court of P & H in the case of Ranjeev Alloys Limited (Supra) has been discussed by the Commissioner (Appeals) in Para 7 of order in appeal and has also been discussed in Para 28.5 of the order dated 15.6/ 10.7.2010 passed by third Member in the case of M/s. Bhagwati Steelcast Limited (supra). The same is reproduced below:- 28.5. In the case of A.N. Guha & Co. vs. Collector [1996 (86) ELT 333], this Tribunal held that it is not necessary for the department to establish a fact with mathematical precision. Once the presumption as to the existence of a fact is raised against the assessee that the input has not been transported in the vehicle mentioned in the invoices, it is reasonable to say that the inputs were not received in the factory. In the case of R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami & V.P. (order dated 08.10.2003 in Civil Appeal No. 10585 of 1996) the Hon'ble Apex Court held as follows:- Whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under clause (8) of Section 167, to which Section 178A does not apply, the burden of proving that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in all criminal or quasi-criminal proceedings, where there is no statutory provision to the contrary. But in appreciating its scope and the nature of the onus cast by it, we must pay due regard to other kindred principles, no less fundamental, or universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and as Prof. Brett felicitously puts it-"all exactness is a fake". El Dorado of absolute Proof being unattainable, the law, accepts for it, probability as a working substitute in this work-a-day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus legal proof is not necessarily perfect proof often it is nothing more than a prudent mans estimate as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. 37. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the Judge. 10. In view of the above judicial pronouncements, the department has reasonably discharged the burden that inputs were not received by the appellants. No manufacturer can ..... X X X X Extracts X X X X X X X X Extracts X X X X
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