9911796707
TMI Blog2000 (2) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... s found that the first respondent is transporting the goods without documentation and without payment of duty in collusion with ACTCL. Show cause notice was issued on 24-4-1995 for recovery of Rs. 99,05,802/-. A show cause notice was also issued to M/s. ACTCL for imposition of penalty under Rule 209(A) of the Central Excise Rules, 1944. The Commissioner of Central Excise dropped the proceedings against the first respondent as well as the transporter. Revenue being aggrieved by the order of the Commissioner filed an appeal before the Tribunal, only against first respondent and cross objections were also filed by the first respondent. No appeal was filed against the order passed by the Commissioner dropping the proceedings under Rule 209(A) against the transporter. The Tribunal considered the various documents which were seized from the premises of the first respondent. Statements of the various persons of transporter were also taken into consideration. Various affidavits were filed by the employees of the first respondent and even the question of non-application of mind by the Commissioner for any mala fide was also examined. The finding which has been recorded by the Tribunal is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... making entries in the Register. Although plausible explanation has been provided by them the department has not investigated further and proved by cogent evidence that explanations were patently improbable. There is no positive evidence to prove the alleged clandestine removal which is based merely on assumption. The Tribunal while coming to this conclusion relied upon the following judgments : (a) Ambalal v. Union of India Ors. reported in 1983 (13) E.L.T. 1321 (S.C.). (b) B. Lakshmichand v. UOI reported in 1983 (12) E.L.T. 322. (c) M. Koyakutty, Kayamkulam v. Collector of Customs Central Excise, Cochin reported in 1978 (2) E.L.T. 494. (d) Harchand v. Additional Collector of Customs reported in 1981 (8) E.L.T. 699 (Calcutta). Therefore, the Tribunal has laid down that the law in regard to clandestine removal it is well settled that for the purpose of clandestine removal the burden is very heavy on the Revenue to show that the assessee had unaccounted balance in the input registers or transferred the inputs without maintaining separate register and manufactured the goods, which flows out from the use of excess electricity bills and unaccounted production of finished ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntention which is raised is that the Tribunal itself should have examined and should have reappraised the evidence or should have granted a reasonable opportunity to the Department so that the principles of natural justice could have been complied with. 7.Arguments of both the learned counsel for the parties heard. 8.So far as the first question is concerned, it may be observed that it is not necessary in all cases the person from whose premises, the documents are [seized] should be made as a party in the proceedings. The Commissioner who initiated the proceeding against the transporter issued the show cause notice under Rule 209(A) of the Central Excise Rules. The very purpose of the said rules is to penalise when any person who is transporting, removing, depositing, keeping, concealing, selling or purchasing, under this Rule it has to be established by the revenue that the said person believes or has reason to believe that the goods are liable for confiscation. It is in these circumstances that penalty could be levied not exceeding three times the value of such goods or Rs. 5,000/- whichever is greater. If the Department comes to the conclusion that it cannot be established b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parate goods had been removed, in terms of those challans and they had been verified and co-related with the gate passes and it was found that the original and duplicate tallied including the details and particulars pertaining to the goods destinated to the various places up to Delhi. There was no two lorry numbers recorded in the lorry challans of the same goods. Therefore, the revenue's contention on clandestine removal of goods had been raised on wrong premises and non-appreciation of lorry challans as stated and held by the Commissioner and confirmed by the Tribunal. There was not an iota of evidence to show the production of goods unaccounted by suppression or by removal of goods by suppression in clandestine manner. Therefore, the Tribunal rejected the appeal of the revenue after a detailed consideration of every piece of evidence on record. The revenue had been given full opportunity, even before the Tribunal to show as to whether there was any clandestine removal of goods. The revenue has availed of the opportunities before the Tribunal. They could not produce any evidence, other than relied in the show-cause notice to show any production of goods. The Chartered Accountant' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sole Arbiter as to the credibility of testimony and the acceptance by it of some explanation. 14.Even, the appraisement of evidence is not a question of law. In Meenakshi Mills v. CIT (1957) 31 ITR 28, it was observed by the Apex Court that when once there is evidence and a conclusion has been reached on appreciation of such evidence, the decision is turned upon the weight to be attached to the evidence. Such material which consists of the assessee's own words and nothing else. It is the existence of the evidence and not the adequacy of the evidence on which the Tribunal has to support is conclusion. Sufficiency or otherwise of evidence is a pure question of fact. In support of violation of principles of natural justice, the adjudicating authority observed that the revenue had made thorough investigation and there was no examination of certain witnesses or seizure of goods. It was for the adjudicating authority to have cross-examined the persons who have filed the affidavit. The Department and the adjudicating authority cannot be considered differently. This beside, the fact that other than the duplicate challan of the transporter, nothing was with the revenue against the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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