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TMI Blog2024 (5) TMI 1192X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the appellate authority as well as the Tribunal. In this appeal filed under Section 35G the Court is required to consider as to whether any substantial questions of law arises for consideration. While doing so, the Court will also have to consider as to what would be the effect of the decision of the learned Tribunal in the case of Jai Balaji Industries Limited [ 2020 (11) TMI 549 - CESTAT KOLKATA] on which heavy reliance was placed by the learned Advocate for the appellant and also on the ground that the said order of the Tribunal has attained finality in favour of those assesses and there are other similar orders where the assesses who have alleged to be involved with SPRML were all successful before the Tribunal. Further the appellant furnished the details of brokers and transporters of SPRML through whom such deals were facilitated. There are other voluntary statements recorded from the brokers Narender Agarwal and Surender Kumar Jain. The tribunal after referring to Rule 26 of the Central Excise Rules, 2002 observed that it is an admitted position that the assessee in their statement which has not been retracted, admitted that they had procured wire rods without cover of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken by the appellate authority and the adjudicating authority. So far as the decision in the case of Jai Balaji Industries and Others the facts of the case were gone into and the learned tribunal concluded that the department has not attempted to investigate in the direction, they ought to have done to prove the alleged clandestine removal - the decision in the case of Jai Balaji Industries Limited is factually distinguishable and cannot be applied to the facts and circumstances of the case on hand. The matter is entirely factual and no question of law much less substantial questions of law arises for consideration in this appeal - Appeal dismissed. - HON BLE MR. CHIEF JUSTICE T.S. SIVAGNANAM AND HON BLE MR. JUSTICE HIRANMAY BHATTACHARYYA Appearance:- For the Appellant : Mr. Arijit Chakraborty, Adv. Mr. Akash Dutta, Adv. Mr. Aditya Dutta, Adv. Mr. Deepak Sharma, Adv. For the Respondent : Mr. K.K. Maiti, Adv. Mr. Tapan Bhanja, Adv. JUDGMENT (T.S. SIVAGNANAM, CJ.) 1. This appeal filed by the assessee under Section 35G of the Central Excise Act, 1944 (the Act) is directed against the final order dated 4th May, 2023 passed by the Customs, Excise and Service Tax Appellate Tribunal, Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Tribunal did not do so in the assessee's case and therefore, the assessee is on appeal and prayed for similar benefit be extended to the appellant as well. Subsequently, the matter was listed and heard and the case was reserved for judgment. 4. Search was conducted by the officers of the intelligence wing of the Central Excise Department on Shree Parashnath Re-Rolling Mills Limited hereinafter referred to as SPRML, on the specific intelligence that they were evading Central Excise Duty by clandestinely procuring raw material namely M.S. billets, M.S. ingots, sponge iron and M.S. scrap, suppressing production and clandestinely procuring the finished goods i.e. M.S. structural items, M.S. wire rods of various sizes. This search led to issuance of a show-cause notice on the appellant dated 16.03.2017 containing various allegations and the appellant assessee was called upon to show cause why penalty should not be imposed on them under Rule 26 (1) of the Central Excise Rules, 2002 (the Rules). 5. The sum and substance of the allegations is that the appellant assessee was involved in clandestine removal of several metric tons of wire rods manufactured by SPRML during the peri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot deny or dispute the charges leveled against them in the show-cause notice nor placed any evidence to dislodge the allegations, confirmed the proposal in the showcause notice and imposed penalty of Rs. 26,94,687/-. Challenging the said order, the appellant assessee preferred appeal before the Commissioner of Central Excise (Appeals) Kolkata II (Commissioner Appeals). 7. The appellate authority discussed the facts and also considered the statement which was recorded from the proprietor of the assessee which was found to be admissible, took note of the other materials and held that the appellant assessee had knowingly indulged themselves in clandestine purchase of wire rods from SPRML during the relevant period without receiving any Central Excise invoice and subsequently sold the same in the open market without accounting for it in their records and therefore held that the appellant assessee was directly involved in the clandestine purchase of wire rods from SPRML. Accordingly, the Appeal filed by the assessee was dismissed. Challenging the said order, the assessee preferred appeal before the Tribunal, contending that the allegation of clandestine removal of wire rods from SPRML i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 014 has admitted to the fact of receipt of goods from SPRML without cover of a purchase invoice for which payments were admittedly made in cash. 10. Further the appellant furnished the details of brokers and transporters of SPRML through whom such deals were facilitated. There are other voluntary statements recorded from the brokers Narender Agarwal and Surender Kumar Jain. The tribunal after referring to Rule 26 of the Central Excise Rules, 2002 observed that it is an admitted position that the assessee in their statement which has not been retracted, admitted that they had procured wire rods without cover of duty paid invoices from SPRML which was evident and established from the computerized ledgers which were seized by the department. The learned tribunal posed a question to itself as to whether the appellant can be held liable on the basis of the statement tendered by the co-accused. To answer the said question, the learned tribunal went into the facts of the case and noted that the computerized records which are date stamped, which cannot be tampered evidence supply of wire rods to the assessee; identification of the chain of brokers/transporters and their statements; cash de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the documents which were seen by the proprietor of the appellant and in acknowledgement thereof having put his signature has not been retracted or even assuming there was a retraction such retraction should be outrightly rejected as an afterthought and not substantiated and the statement recorded from the proprietor of the appellant is admissible in evidence. 12. The appellate authority has re-appreciated the factual position, apart from other things noted that the proprietor of the appellant was confronted with the computerized ledger account maintained for the relevant period and he was asked to produce the relevant purchase invoices as reflected in the computerized ledger however, he failed to produce any invoice for the relevant period. The proprietor had no details of the total quantity of MS wire rods purchased during the relevant period, payment for which has been made in cash in the Kolkata office of the SPRML through brokers. 13. The Commissioner Appeals also considered the plea of retraction raised by the appellant at the appellate stage and, noted that such a plea of retraction made after three years and nine months after the statement was recorded that too in the grou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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