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TMI Blog2017 (10) TMI 1108X X X X Extracts X X X X X X X X Extracts X X X X ..... of Commissioners about the illegality of the order as required under Section 35B of the Central Excise Act. There was no authorization by the Committee of Commissioners to file appeal on its behalf - appeal dismissed being non-maintainable. Whether during the relevant period, the Additional Director General of DGCEI was having the jurisdiction to issue SCN? - Held that: - the SCN has been issued to the respondent on 08.05.2001. Whereas the N/N. 38/2001-CE(NT) dated 26.06.2001 was effective from 01.07.2001. Admittedly, the SCN has been issued prior to the effective date of N/N. 38/2001-CE(NT) - at the time of issuance of the show cause notice, the Additional Director General, Shri R.K. Sharma of DGCEI was not having any jurisdiction to issue the show cause notice - decided in favor of respondent-assessee. Whether the adjudicating authority was an appropriate officer to adjudicate the matter or not? - Held that: - In terms of the office memo dated 12.02.1958, 23.03.1958 and 28.05.1958 it has been stipulated that for Gazetted appointments, there should be a gazette notification. As no such notification has been placed on record for promotion and appointment of Shri Rajiv Aggarwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... haram Kanta was received which were the slips of S S Ingots. Therefore, it was alleged that the said ingots were received in the factory of the respondent and they cleared the same without recording in their statutory records. It was further found that the quantity shown of ingots and flats is on reverse side were not recorded in their stocks properly. During the course of search, the respondent admitted that they have received 238.505 MT of ingots from 08.10.2000 to 10.10.2000 without any bill or invoice and they have not made any book of account like RG-1 and RG-23 A. They use these ingots for manufacturing of SS flats which were cleared without payment of duty. Therefore, the show cause notice was issued for demand of duty along with interest and for imposition of penalty on the respondent. The matter was adjudicated, duty was demanded along with interest and equivalent amount of penalty was confirmed against the main party and penalty of ₹ 10 lakhs was imposed of Shri Purushottam Kumar Gupta, Director of the Company. The said order was challenged before the Ld. Commissioner (A) who set aside the order of adjudication. Aggrieved from the said order, the Revenue is before m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the retraction is not admissible. To support this contention he relied on decision in the case of P B Nair C F Pvt. Ltd. Vs. CC Mumbai 2015 (318) ELT 437 (Tri-Mum) and Zaki Ishrati Vs. CC Kanpur 2013 (291) ELT 161 All. He further submits that in the impugned order the Ld. Commissioner (A) fell in error to say that the records recovered were written by Shri Nepal Singh as he was never examined and confronted with these documents allegedly written by him whereas Shri Purushottam Kumar Gupta has confessed that Shri Nepal Singh has left the job, he was not aware of his whereabouts. As Shri Nepal Singh was not available to the investigating agency, how he could be examined at that time. During adjudication, the said Shri Nepal Singh was produced by the respondent for cross examination which clearly indicated that Shri Purushottam Kumar Gupta did not disclose the whereabouts of Shri Nepal Singh to the investigation agency with malafide intention to conceal the truth which could have been otherwise be unearthed on interrogation of Shri Nepal Singh. If the said, Shri Nepal Singh in his cross examination had denied the said document were written by him, or the words and letter writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the respondent took an objection that no such meeting was being held between the members of the Committee of Commissioners. Further, no date, when the meeting was held has been mentioned and the authorization is also undated. He further submits that para 20 of the Review order reveals as under: The Order in appeal no. 52-53/CE/DLH/2009 dated 24.04.2009 was reviewed by the Committee of Commissioners, Central Excise Delhi-I and Delhi-II under Sub-section (2) of Section 35B of Central Excise Act, 1944 and the committee found the same illegal and unfair. Hence this appeal. But no opinion has been found. I find that this issue has been examined by the Hon ble High Court of Delhi in the case of Kundalia Industries (Supra) wherein the Hon ble High Court observed as under: 5. This was the opinion of the aforesaid two officers who rightly submitted the matter for consideration by the Committee of Commissioners. However, the Commissioner of Central Excise-I and Commissioner of Central Excise-II who allegedly constitute the Committee of Commissioners, simply appended their signatures to the aforesaid note on 7th January and 8th January, 2008 respectively. This show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect of Shri Rajiv Aggarwal as Joint Commissioner and Shri Rajiv Aggarwal has been appointed as Joint Commissioner w.e.f. 05.01.2009 vide letter no. F No. C-50/RTI/95/2008-AD-II dated 05.01.2009 wherein it has been stated that the Gazette notification in respect of posting of Shri Rajiv Aggarwal has not been issued though he has been promoted as Joint Commissioner vide order no. 63/2005 dated 29.04.2005 and has been posted at Central Excise, Delhi vide order no. 91/2005 dated 10.06.2005. In terms of the office memo dated 12.02.1958, 23.03.1958 and 28.05.1958 it has been stipulated that for Gazetted appointments, there should be a gazette notification. As no such notification has been placed on record for promotion and appointment of Shri Rajiv Aggarwal as Joint Commissioner, therefore, the adjudication order passed by him as Joint Commissioner is not sustainable in the eyes of law. Therefore, on that issue, I do not find any infirmity with the impugned order. Therefore, the said issue is also answered in favour of the respondent. Issue No. 4: I find that the statement recorded during the course of investigation on 08.03.2001 have been retracted by Shri Purushottam Kumar Gupta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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