9911796707
TMI Blog2017 (11) TMI 533X X X X Extracts X X X X X X X X Extracts X X X X ..... rders and Papers in Suit No. 1870 of 1997, filed by the Appellants before this Court, evidencing that the goods in question were duty paid and were not removed by the Appellants in contravention of the Act and the Rules framed thereunder, the order passed by the Tribunal is sustainable? (c) Whether the Tribunal was correct in upholding a charge of clandestine removal in the appeal arising from proceedings conducted in gross denial of natural justice, inasmuch as the adjudicating authority denied the cross-examination of the only witnesses whose statements have been relied upon by the Revenue in foisting the serious allegation of clandestine removal upon the Appellants? (d) Whether the Tribunal was correct in upholding the invocation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ics evidencing duty payment. The consignment was removed from the assessee's godown which was situated two kilometers away from the assessee's factory. Grey fabrics were received from the godown and onward delivery to the assessee's factory for processing. It was found that large stock of the processed fabrics for bales were also stored in the godown. 4. The assessee's employee in charge of the Excise informed the officers of the revenue that fabric brought from Coimbatore had been kept in godown for repacking. Inquiries revealed that the security personal reportedly revealed that no repacking of any kind was carried on at the godown. Scrutiny of the Material Loading Register and the factory gate outward register revealed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivram had contended that these were duty paid goods but the Tribunal had failed to consider the evidence before it. 7. Mr. Patil further submitted that the report of the Court Receiver had in fact revealed that the goods recovered from M/s. Shivram could be co-related to the duty paid goods but the Tribunal had not interpreted the evidence correctly. The learned Counsel submitted that the only evidence against the assessee is that of the security personnel who had apparently stated that no repacking activity was carried on at the site. Mr. Patil submitted that the assessee was not given an opportunity of cross examining the security personnel and therefore the order of the Tribunal suffered from gross violation of principles of natural jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heard the learned counsel on both sides at length and having considered the record, we find nothing amiss in the conclusions of the Tribunal. The assessee's contentions lack merit. The Tribunal found that the report made by the Court receiver did not support the version of the assessee that processed fabrics taken over by the Court Receiver and sent back to their SMP godown were co-relatable to the bales of processed fabrics initially cleared by the applicant on payment of duty to the Coimbatore dealer and which were taken over by the Court Receiver. 10. The Tribunal had noticed a portion of the Receiver's report which indicates that there were no marking on the goods to indicate under which invoice the goods were received and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tended that the fabrics received from Coimbatore dealers were brought into the factory and repacked with fresh Central Excise bale numbers. 12. The Tribunal upheld the finding on the aspect of limitation since the assessee had been consistently withholding information from the investigating officer and clandestinely removing goods from their Roha plant. Thus the Tribunal found that the proviso to Section 11A(1) of the Act had been rightly invoked. The revenue was entitled to conclude that there has been suppression of fact and contravention of the provisions of the Act with an intention to evade payment of duty. The entire quantity of 905 bales were thus subjected to payment of duty. 13. Essentially these are finding of the fact and no qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence including purchase of raw material, use of extra electricity, sale of final products, clandestine removal, transportation, payment, realisation of sale proceeds that a demand could not be made on basis of presumptions and assumptions. This judgment is of no assistance to Mr. Patil since in the instant case the finding of clandestine removal was not based on assumptions or presumption but actual seizure of the goods without any duty paid documents. Moreover despite the opportunity given, the assessee could not establish any co-relation between the goods sent to Coimbatore and the goods being cleared from the godown. Thus neither of these two judgements D. B. Electronics (Supra) and Continental Cement Company (supra) are of any assi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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