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TMI Blog2016 (7) TMI 897X X X X Extracts X X X X X X X X Extracts X X X X ..... djudication while confirming demand and proposal made in the show cause notice by the adjudicating authority? Tax Appeal No.516/2015 (i) Whether in the facts and the circumstances of the case, the Ld. Tribunal is justified in the eye of law, in holding that the revenue has failed to establish the clandestine clearance of the goods by the assessee - respondent, inspite of adducing by the Revenue, the relevant and important significant records/documents pertaining to the respondent alongwith their positive corroboration by the specific admission of the said respondent and the witnesses, which were never retracted? Since the facts and contentions in all the three appeals are more or less common, the same were taken up for hearing together and are disposed of by this common judgment. For the sake of convenience, reference is made to the facts as stated in Tax Appeal No.548/2015. 2. The respondent - Shree Krishna Industries is engaged in the manufacture of Ceramic Glaze Fritz falling under Chapter 3207.10/90 of the Central Excise Tariff Act, 1985. However, according to the respondent, since the clearances made by it are not in excess of Rs. 1,00,00,000/- (rupees one crore), it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 26 of the Central Excise Rules, 2001 read with Central Excise Rules, 2002 for the acts of omission and commission. 2.2 By an order-in-original dated 31st March, 2008, the show-cause notice came to be adjudicated by the Additional Commissioner of Central Excise, Vadodara-II, whereby he confirmed the demand of duty along with interest and imposed mandatory penalty equivalent to the duty amount on the respondent assessee. The adjudicating authority also imposed personal penalty on the other noticees. Being aggrieved, the respondent-assessee preferred appeals before the Commissioner (Appeals), Central Excise and Customs, Vadodara, who, after considering the submissions advanced on behalf of the assessee, dismissed the appeals by an order dated 29th September, 2009. The respondent carried the matter in appeals before the Tribunal and succeeded. Being aggrieved, the appellant revenue has preferred the present appeals. 3. Mr. R.J. Oza, learned senior advocate and senior standing counsel for the appellant, assailed the impugned order by submitting that the respondent enjoys exemption under Notification No.8/2002-CE and is, therefore, not required to be registered under the provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nkleshwar and M/s. Hitesh Roadlines, Kadi, have supported the case of the revenue. Referring to the findings recorded by the Tribunal in paragraph 9 of the impugned order, it was submitted that from the findings, nowhere it appears that there has been clandestine clearances by M/s. Shri Krishna based on invoices. Referring to the show-cause notice, it was submitted that the same does not say that goods are not cleared under invoice but it says that the clearances exceed the SSI limit. Referring to the findings recorded by the Tribunal with regard to the suppliers of raw material, it was pointed out that the Tribunal has not made any reference to the statement of M/s. Shivam Chemicals. It was submitted that this is a case of clearance of goods beyond the permissible limit prescribed in the exemption notification and hence, what has to be established is the clearance of goods. It was submitted that there is no dispute as regards supply and the vital aspect is the clearance of goods and prima facie the supply of goods has been established by the Department. Reference was also made to the findings in the context of the statement of the transporters as recorded by the Tribunal and as co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings recorded by the Tribunal are in consonance with the evidence on record. It was submitted that this is a clear case of appreciation of evidence and that in the absence of any perversity in the findings recorded by the Tribunal, no question of law arises. It was submitted that the findings with regard to clandestine removal is a question of balancing evidences. The Tribunal having relied upon all the evidence that was on record, there is no perversity therein. It was submitted that according to the revenue this is a clandestine removal, however, no money trail has been established by the revenue. It has not been found that any amount is paid to the assessee and no document showing that the assessee has received any amount has been produced. It was submitted that out of sixty to seventy customers named in the notebook, the Department has examined only four such customers, despite the fact that the names of all the other customers are also there in the notebook. It was submitted that out of the four customers examined by the Department, two had made statements in favour of the assessee and the other two in their cross-examination have testified in favour of the assessee. It was su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of this court in the case of Commissioner v. Motabhai Iron and Steel Industries, 2015 (316) E.L.T. 374 (Guj.), wherein the court has held that even if on the same material, it was possible to take a different view, the same would not give rise to a substantial question of law. Reliance was also placed upon the decision of this court in the case of Commissioner of C.Ex., Cus. & Service Tax v. Vishwa Traders P. Ltd., 2013 (287) E.L.T. 243 (Guj.), wherein the court held that it is wellsettled that the findings of the Tribunal can be interfered only if it is perverse or some material evidence is ignored. In such circumstances, only the court may exercise jurisdiction on issue which may give rise to any substantial question of law. The court in the facts of the said case found that no substantial question of law arose for consideration. It was submitted that the facts of that case and the facts of the present case are more or less similar and that the above decisions of this court have been confirmed by the Supreme Court. It was, accordingly, urged that the appeals being devoid of merit, deserve to be dismissed. 6. This court has considered the submissions advanced by the learned c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter. The Tribunal further found that the other witnesses on whose statement the Department sought to place reliance have also not supported the case of the Department so as to hold the charge of clandestine removal. The Tribunal noted as a matter of fact that except for the alleged receipt of Boric Acid which is one of the materials required for manufacture of Fritz, there is no evidence appearing in the seized record or otherwise that the respondent has received any other raw material clandestinely. The Tribunal also noted that even no transportation of any other raw material required for manufacture of Fritz was appearing or alleged in the show-cause notice and was accordingly of the view that the allegation of clandestine removal needs to be established by showing receipt of major raw materials, at least of some quantity, use of excess raw material, input - output ratio, transportation of raw materials, use of such goods in manufacture of finished goods, excess utilisation of power fuel, transportation of finished goods, investigation at the buyer's end, receipt of money, etc. However, none of these factors have been taken into consideration during the course of investigation. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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