Custom, Excise & Service Tax Tribunal
Shirley Dyers vs Cce, Jallandhar on 26 April, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
COURT NO. III
Excise Appeal No. 2192/2005-EX[DB]
[Arising out of Order-In-Appeal No. 141/CE/Appl/Jal/2005 DT.31.03.05 passed by CCE,Jallandhar]
For approval and signature:
Honble Ms. Archana Wadhwa, Judicial Member
Hon'ble Mr. Rakesh Kumar, Technical Member
1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No
3
Whether Their Lordships wish to see the fair copy of the Order?
Seen
4
Whether Order is to be circulated to the Departmental authorities?
Yes
Shirley Dyers Appellant
Vs.
CCE, Jallandhar Respondent
Coram: Honble Ms. Archana Wadhwa, Judicial Member Hon'ble Mr. Rakesh Kumar, Technical Member Appearance:
Mr. Sudhir Malhotra, Advocate for the Appellants Ms. Ranjana Jha, DR for the Respondent Date of Hearing: 05.04.2013 Date of Decision:26.04.2013 FINAL ORDER NO . 56178/2013_ Per Ms. Archana Wadhwa As per facts on record appellant is engaged in the processing of velvet/Cotton Corduroy cloth falling under chapter sub heading No. 5801.22. Demand of duty of Rs. 16,28,070.76/- stand confirmed against the appellant along with imposition of penalties on the allegation and findings of clandestine removal of their final product. Such findings are based upon some bailing slips which stand given to the Revenue by onus on Shri Jagmohan Singh, Prop. M/s. J.K. Woolen & Silk Mills Amritsar. As per statement of Shri. Jagmohan Singh, such bailing slips show removal of the processed fabric by the appellant without payment of duty. He has also deposed that such Corduroy Cloth were given by his company to the appellant for processing and were received back under the cover of bailing slips, without issuing any Central Excise invoices. However, it is seen that the clandestine removed fabric under the cover of the said bailing slips is also not recorded in the records of M/s J.K. Woolen & Silk Mills.
2. It is further seen that the Revenue also searched the premise but one M/s. I.T. Rib-Cutting Textile and resumed their records statement of Shri Gagandeep Singh Prop. of the said unit was recorded wherein he admitted having sent the rib-cut Corduroy Cloth to the appellant for further processing, without the cover of any Central Excise invoice.
3. During the course of visit in the appellant factory, shortage of processed Corduroy cloth involving duty of Rs. 50190/- was found, which the appellant admitted & deposited the dues.
4. During the course of further investigations statement of Shri Ashok Kumar, Authorized Signatory of the appellant was recorded and he was confronted with the said 283 bailing slips produced by Shri Jagmohan Singh and he admitted that 56 slips were written by him. However he clarified that the same relate to transactions of grey fabrics arranged as a broker for Shri Jagmohan Singh and not for processing of goods cleared from the appellants factory.
5. On the above basis, processing were initiated against the appellant resulting in confirmation of demand of duty and imposition of penalty by original adjudicating authority and upheld by Commissioner (Appeals). Hence the present appeal.
6. After hearing both the sides, we find that the entire case of the revenue is based upon 283 bailing slips produced by Shri Jagmohan Singh, who was the customer of the appellant. Apart from the said slips, there is no evidence on record, corroborating the allegation of the Revenue. The appellants representative, when confronted with the said documents, admitted having written 56 bailing slips but clarified that the same were in relation to the goods traded by him in his personal capacity. We note that there is nothing on the said bailing slips connecting them to the appellant. There is also virtually no other evidence to reflect upon the clandestine manufacture and clearance by the appellant. It is well settled law that allegation of clandestine removal is required to be arrived at on the basis of sufficient and positive evidence and the onus to produce such allegation is on the Revenue. The said allegations cannot be sustained on the basis of documents recovered from a third person, without any corroboration in material particulars from independent source. As such we find no justification for confirmation of demand against the appellant based upon such documents produced by a third person and having no nexus or link with the appellant. We accordingly set aside the impugned order and allow the appeal with consequential relief to the appellant.
(Pronounce in the open Court on 26.04.2013) (Archana Wadhwa) Member (Judicial) (Rakesh Kumar) Member (Technical) Jyoti* ??
??
??
??
4