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TMI Blog2018 (1) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... 120 / 2017 - - - Dated:- 6-12-2017 - K. S. Jhaveri And Vijay Kumar Vyas, JJ. For the Appellant : Mr. Anuroop Singhi with Mr. N.S. Bhati For the Respondent : Mr. A. R. Madhav Rao with Ms. Nandit Narayan Mr. Sameer Jain Mr. Daksh Pareek Arjun Singh ORDER 1. By way of this appeal, the appellant has challenged he judgment and order of the Tribunal whereby the Tribunal has allowed the appeal of the assessee reversing the view taken by the Adjudicating Authority, Commissioner and Central Excise, Jaipur-I whereby the appeal preferred by the assessee was allowed. 2. Counsel for the appellant has framed following susbstantial question of law: Whether the Tribunal was correct in allowing the appeals of the assessee, solely by holding that there is no sufficient corroborative evidence to statement tendered by partner of assessee, (para 6.3), even when statement tendered by Central Excise Officer is admissible before court of law as piece of evidence. 3. He has taken us to the order of the Commissioner which reads as under: 207. Another chart (Annexure-B) showing unauthorized production and clearance of Jayanti brand Gutkha pouches, of M.R.P. Re.1/- eac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question was not a register maintained for recording production but was a document maintained for the purpose of keeping supervision over the factory workers and on their daily production was entered on estimate basis only. Before entries were made in RG-1 the product was actually weighed and actual weight was entered in RG-1. In support of this contention, the manufacturer had also produced a chart of procuring raw material and its corresponding production. This explanation had not been accepted by the Adjudicating Officer. 5. However, the Tribunal found the explanation to be plausible and considering the fact that no attempt was made by Adjudicating Officer to verify the correctness of explanation put forward by the manufacturer in light of corroborative material produced by about the procurement and disposition of the raw material, there was no reason to doubt the correctness of the material. In view thereof the explanation furnished by the manufacturer was accepted by the Tribunal and the levy of the duty as well as the penalty was deleted. 6. The aforesaid narration clearly goes to show that findings reached by the Tribunal are findings of fact and does not give ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom cannot ignore the findings and Orders of competent Criminal Courts in respect of an offence, when the Tribunal proceeds to take any action on the basis of the commission of that offence. Let us take the instance before us. The offence consist in smuggling foodgrains. For that same offence, the petitioner was criminal prosecuted. He has also been punished by his permit being suspended for a period of three months. If the criminal case against him ends in discharge of acquittal, it means that the petitioner, is not guilty of the offence and therefore did not merit any punishment. It would indeed be a strange predicament when in respect of the same offence, he should be punished, by one Tribunal on the footing that he was guilty of the offence and that he should be honourably acquitted by another Tribunal of the very same offence. A primarily the Criminal Courts of the land are entrusted with the enquiry into offences, it is desirable that the findings and orders of the Criminal Courts should be treated as conclusive in proceedings before quasijudicial Tribunal like the Transport Authorities under the Motor Vehicles Act. 3. Commissioner of Central Excise vs. Omkar Textile M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ama and the statements. 9. Thus, all the authorities below viz., the adjudicating authority, Commissioner (Appeals) as well as the Tribunal have concurrently found that except for the statement of the Director of the Assessee Company, Shri Rajnikant Agarwal recorded on 10-7-2003, there was no other evidence in support of the charge of clandestine removal of goods. The statement recorded on 10-7-2003 had subsequently been retracted by Shri Rajnikant Agarwal. Thus, it is apparent that the only evidence in respect of clandestine removal against the Assessee was in the nature of the statement recorded under Section 14 of the Act, which had been subsequently retracted. Before the adjudicating authority, the Respondent Assessee had led evidence to establish that the charge of clandestine removal is not made out and that there was no shortage of material as recorded in the panchnama which was accepted by the adjudicating authority. The findings of the adjudicating authority stand confirmed by both the appellate authorities. Learned Counsel for the Appellant is not in a position to point out any evidence to the contrary, in support of the case of the revenue as regards shortage of ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by any documentary evidence/proof. The mischievous role of Shri Anil Kumar erstwhile Director with the assistance of Accountant Sri Vasts cannot be ruled out. 5. Commissioner of Central Excise, Ludhiana vs. Nexo Products (India), 2015 (325) E.L.T. 106 (P H), wherein it has been observed:- 8. The said submission is without any merit. Specific defence had been taken by the manufacturer that no effort had been made to segregate the nuts and bolts into various sizes and to find the shortage by comparing the same with the recorded balance and there was huge stock of 91 lacs pieces of various sizes of nuts and bolts and it was impossible for the Department to come to a conclusive factual finding that there was shortage of 14,25,900 pieces of particular size and if they were all mixed together. The onus would lie upon the Department to undertake the said exercise which was not possible in such a short period due to the large number of inventory which was there at the site. Nothing was brought on record, in any manner, to show that to manufacture such a large amount of 14,25,900 pieces, there was material which had been consumed since neither any relevant record had been shown ..... X X X X Extracts X X X X X X X X Extracts X X X X
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