Custom, Excise & Service Tax Tribunal
Shri Hari Steel Industries vs Rajkot on 29 August, 2022
1|Page
Customs, Excise & Service Tax Appellate Tribunal
West Zonal Bench At Ahmedabad
REGIONAL BENCH- COURT NO. 3
Excise Appeal No. 12563 of 2018
(Arising out of OIA-BHV-EXCUS-000-APP-185-187-2018-19 Dated-26/07/2018 passed by
Commissioner ( Appeals ) Commissioner of Central Excise, Customs and Service Tax-
RAJKOT)
Shri Hari Steel Industries ........Appellant
M/S V B Seth & Co, 'Dharaj', Near Moti Tanki
Dr. Radhakrishna Road,
Rajkot, Gujurat
VERSUS
C.C.E. & S.T.-Rajkot ........Respondent
Central Excise Bhavan, Race Course Ring Road...Income Tax Office, Rajkot, Gujarat-360001 WITH Excise Appeal No. 12564 of 2018 (Arising out of OIA-BHV-EXCUS-000-APP-185-187-2018-19 Dated-26/07/2018 passed by Commissioner ( Appeals ) Commissioner of Central Excise, Customs and Service Tax-
RAJKOT)
Nagjibhai Jivrajbhai Dodiya ........Appellant
M/S V B Seth & Co, 'Dharaj', Near Moti Tanki
Dr. Radhakrishna Road,
Rajkot, Gujurat
VERSUS
C.C.E. & S.T.-Rajkot ........Respondent
Central Excise Bhavan,
Race Course Ring Road...Income Tax Office,
Rajkot, Gujarat-360001
AND
Excise Appeal No. 10064 of 2019
(Arising out of OIA-BHV-EXCUS-000-APP-185-187-2018-19 Dated-24/07/2018 passed by Commissioner ( Appeals ) Commissioner of Central Excise, Customs and Service Tax-
RAJKOT) Himanshubhai Nandlal Jagani ........Appellant
38, Vihar Complex, Fourth Floor, Near Sahakari Hat, Waghawadi Road, BHAVNAGAR, GUJARAT VERSUS C.C.E. & S.T.-Bhavnagar ........Respondent Plot No.6776/B-1...Siddhi Sadan, Narayan Upadhyay Marg, Beside Gandhi Clinic, Near Parimial Chowk, Bhavnagar, Gujarat-364001
2|Page E/12563-12564/2018 & E/10064/2019-DB APPEARANCE:
Shri. Paresh V. Sheth, Advocate for the Appellant Shri R. P. Parekh, Superintendent (Authorised Representative) for the Respondent CORAM: HON'BLE MR. RAMESH NAIR, MEMBER (JUDICIAL) HON'BLE MR. RAJU, MEMBER (TECHNICAL) Final Order No. A/ 11053-11055 /2022 DATE OF HEARING:19.07.2022 DATE OF DECISION:29.08.2022 RAMESH NAIR The present appeals were filed by Appellants against the Order- In-Appeal No. BHV-EXCUS-000-APP-185-187 -2018-19 dated 24.07.2018.
2. The brief fact of the case is that the anti-evasion branch initiated the inquiry on the basis of the intelligence that some of the Re-rolling units of Sihor, Vartej and Bhavnagar are engaged in large scale evasion of Central Excise Duty by way clandestine removal of Re-rolled products. Such type of activity of removal of excisable goods illicitly is carried out by the re-rolling units with the active help and support of brokers. These brokers procured orders from the different customers/ buyers and thereafter they procure the goods from manufacturer and dispatch the goods through Transporters without Central Excise Invoices and without Payment of Central Excise Duty. Searches were conducted at the premises of Shri Himanshu Nandlal Jagani, Broker and Statements of broker was recorded and entries recorded in the notebook/dairies retrieved during the course of investigation revealed that manufacture of excisable goods and clearances thereof to buyers were made against cash transactions. He explained the code used by them and the transaction recorded in the said notebooks/ diaries. Investigation also conducted at the end of Appellant M/s Shree Hari Steel Industries during the search various documents were seized. On the basis of documents drawn at the office premises of Shri Himanshu N. Jagani, broker and with the sales report of the Appellant it appears that no invoices or sales bills have been issued by the Appellant for the goods mentioned in the most of the entries of the said records and the good have been removed without payment of duty and without issue of invoice. Statement of Shri Nagijbhai Jivrajbhai Dodiya, partner of Appellant was recorded wherein he admitted the removal of goods without payment of duty through the Broker. For further investigation, some of the transporter whose name and /or vehicle no. were appearing in the documents seized from the premises of broker were also examined. It was
3|Page E/12563-12564/2018 & E/10064/2019-DB also alleged that Appellant have wrongly availed the benefit of Notification No. 08/2003 -C.E. dtd. 01.03.2003. After thorough investigation, a show cause notice dated 23-2-2016 was issued, proposing demand of Central Excise Duty along with interest and penalty from Appellant and penalty under Rule 26 of Central Excise Rules 2002 on partner of Appellant and broker. By the order-in-original dated 18.07.2017, the Adjudicating authority confirmed the demand of duty along with interest and penalty. He also imposed penalty under Rule 26 of Central Excise Rules 2002 on both co- appellants. Aggrieved by the said order, appellants filed appeals before the Commissioner (A), and learned Commissioner (A) upheld the Order-in- Original and rejected the appeals filed by the appellants. Hence, the present appeals.
3. Shri. Paresh V. Sheth, Learned Counsel appearing on behalf of the Appellant submits that Ld Commissioner (Appeals) confirmed the demand without properly appreciating the submission made and also the decisions referred. The observation of adjudicating authority on the basis of third party documents as well as statements was improper and unjustified. Ld. Commissioner (Appeals) has erred in confirming the demand on the ground that the broker has confirmed the removal of excisable goods on the basis of the documents impounded from his premises. Further without considering the affidavit of partner of the firm he confirmed the demand.
4. He further submits that Ld. Commissioner (Appeals) has erred in confirming the demand ignoring the fact that the department has neither supplied relevant documents nor has allowed cross examination of the witnesses. It is settled law by now that the statements cannot be relied upon unless the criteria laid down under the provisions of Section 9D is complied with and further non supply of relied upon documents is nothing but violation of principle of natural justice. Therefore, the order under consideration is liable to be set aside and is liable to be declared as bad in law.
5. He also submits that during the course of investigation the department has not found any variation in either the stock of material or finished goods and has also not found any other incriminating documents. Both the authorities ignored the request of cross-examination and affidavit of Shri Nagjibhai. Therefore, no duty demand is sustainable. He placed reliance on the following decisions.
4|Page E/12563-12564/2018 & E/10064/2019-DB
(i) Bansal Castings Pvt. Ltd. order passed in Appeal No. 12451/2018 (Ahd. CESTAT)
(ii) P.D. Industries Pvt. Ltd. - 2016(340)ELT 249 (Tri. Del)
(iii) Sada Shiv Steel Mills - 2017 (357) ELT 481 (Tri. Chen. )
(iv) Ashutosh Metal Industries - 2018 (15) GSTL 384 (Tri. Del)
(v) Vishwa Traders Pvt. Ltd. -2012(366) ELT 1019
(vi) Vishwa Traders Pvt. Ltd. - 2013 (287) ELT 243 (Guj - HC)
6. On the other hand, Shri. R P Parekh, Learned Superintendent (Authorized Representative) appearing on behalf of Revenue reiterates the findings of the impugned order. He argued that the record recovered from the brokers bearing the details of clearances which tallied with the statutory records maintained by the Appellant, there is a clear corroboration of the evidence. Hence, demand was rightly confirmed by the lower authorities.
7. Heard both the sides and perused the case records.
8. We find that entire case was made out on the basis of search conducted with the third party which is the broker and the records recovered from the broker. The Ld. Adjudicating authority for confirmation of demand also relied on the statement of broker and partner of appellant's firm. However it is on records that in the present matter partner of appellant firm filed affidavit and in his affidavit he had clearly negated the contents of his earlier statements and therefore no reliance can be placed upon his statement. Department had demanded excise duty on finished goods, alleging that the Appellant have clandestinely removed the goods by relying on the broker's records and oral statements and without any corroborative evidence either from the Appellant's premises or from the Customers documents etc. We find that despite the appellant requested for cross-examination of witnesses, the lower adjudicating authority has rejected the request of appellant. The lower adjudicating authority does not explain convincingly why the cross- examination sought by the appellants was denied. The lower Adjudicating Authority had failed to follow the requirement of Section 9D of the Act regarding examination in chief of witness. As per the provisions of section 9D it is clear that during adjudication, the adjudicating authority is required to first examine the witness in chief and also to form an opinion that having regard to the facts and circumstances of the case, the statements of the witness are admissible in evidence. Thereafter, the witness is offered to be
5|Page E/12563-12564/2018 & E/10064/2019-DB cross-examined. It is a settled principle of law that if the authority wants to rely upon the statement of any witness, the opportunity of cross- examination ought to have been given to enable the party to prove its case. Non-providing of the opportunity of cross-examination amounts to violation of the natural justice and in absence of denial of natural justice, such documents/statements cannot be relied upon. In the case of Basudev Garg v. Commissioner of Customs [2013 (294) E.L.T. 353 (Del.)], the Division Bench of the Delhi High Court has held that the statement against the assessee cannot be used without giving them opportunity of cross- examination. Cross-examination is valuable right of the accused/noticee in quasi-judicial proceeding which can have adverse consequences for them.
9. Further on a careful consideration of the facts and records, we noticed that mere entries found recorded in the records of said Broker cannot be held to be sufficient piece of evidence to confirm the demand of duty and allegation of clandestine removal. It is well settled law that there has to be some concrete evidence in the form of receipt of raw materials, shortage of raw materials, clandestine manufacture including use of electricity, excess or shortage of inputs found in the stock, flow back of funds, purchase of final products by parties alleging receipt and removal of goods and any such evidence which would show clandestine manufacture of goods. It is also an admitted facts that the documents recovered from the premises of Broker are third party documents and same cannot be relied upon without any corroborating evidences. Therefore, the entire case is based on entries found recorded in the record of broker does not have reliability and credibility.
10. We further note that the allegations of clandestine removal are required to be established by production of positive and tangible evidences and should not be arrived at on the basis of assumptions and presumptions. Case of the Revenue is based upon the statement of the co-accused which statements are not supported by any independent corroborative evidence. It is again well settled that confession of co-accused cannot be treated as substantive evidence and Court must corroborate the purported confession from independent sources. Reference in this regard is made to Hon'ble Supreme Court decision in case of Mohtesham Mohd. Ismail - 2007 (220) E.L.T. 3 (S.C.). In the present case, no discrepancies in the stock of raw material or final product were detected by department at the time of visit of the officers in the factory of Appellant. Further, no incriminating documents were recovered from business premises of appellant. There is no evidence as
6|Page E/12563-12564/2018 & E/10064/2019-DB regards procurement of such a huge quantity of raw material by Appellant so as to manufacture the goods clandestinely and remove the same without payment of duty. No record showing any extra payment to the labourers. No investigations as regards electricity consumption stand made by Revenue. If the goods to the tune of around Rs. 5 crores is manufactured and cleared by the appellant without payment of duty, the same requires procurement of raw material, extra working hours of the factory, electricity consumption, payment of labour charges, any fund flow between Appellant and customers, etc. Neither of the said factors were investigated and the entire case was made on the basis of statements of persons and documents/records of Broker. It was further noted that neither a single buyer has nowhere admitted having purchased the goods from Appellant without payment of duty, nor is there any statement of any buyer/ customers admitting having cleared the huge quantum of the goods without payment of duty.
The appellant relied upon the case of Bansal Castings Pvt. Ltd. supra, we find that the said case was also made out under a common investigation and not only this, the broker involved is the same i.e. Shri Himanshubhai Nandlal Jagani. We find that the records of broker relied upon by the revenue in that case and in the present case is same. Even the same statement of the broker was reiled upon both the cases. The relevant order in the Bansal Casting case is reproduced below:
"4. I have carefully considered the submissions made by both the sides and perused the records. I find that entire case was made out on the basis of search conducted with the third party which is the broker and the records recovered the from the broker. The records of the broker bearing some entries related to some of the goods. Some statement was recorded from the broker. I find that despite the appellant requested for cross examination, the lower authorities have rejected the request. In the present case, the entire evidence was relied upon are documents recovered from the brokers and their statement. In this case, no evidence was found with M/s Bansal Casting Pvt. Ltd. It was incumbent on the Ld. Commissioner to grant the cross examination of the broker as it is mandatory under section 9D. Without cross-examination of the evidence, their statements cannot be relied upon. In the judgment of Rama Shyama Papers Ltd. (supra). cited by Ld. Counsel, he pointed out following para 9 & 10: 9.
9.We have considered the submissions of both the sides. The Revenue has charged the Appellants with clandestine manufacture and removal of paper mainly on the basis of documents seized from the premises of Chitra Traders and Transporters and the various statements recorded from the Proprietor of Chitra Traders, transporters and labourers working in the factory of the Appellants and also the driver or cleaner of the Truck which was in the process of loading on 22-6-2001 when the Central Excise Officers visited their factory premises. The Appellants, on
7|Page E/12563-12564/2018 & E/10064/2019-DB the other hand, have contended that most of the persons whose statements have been relied upon have not been produced for cross- examination and the documents seized from third parties' premises have not been corroborated by adducing evidence of any of the customers though the enquiries were conducted at different places as 5 E/12133, 12451 & 12559/2010-SM deposed by Shri Anurag Sharma, Inspector, in his cross-examination on 4-3- 2002. Out of 19 consignments said to have been cleared by the Appellant No. 1 without payment of duty on the basis of five transporter, we observe that in respect of two consignments, it has been mentioned by the Revenue that the same may not pertain to the Appellants. Further, only one transporter Shri Sanjay Garg of M/s. Balaji Transporter Co. was produced for crossexamination which accounts for only two consignments out of 19 consignments in question. Shri Garg, it is observed from the record of crossexamination, has deposed that they generally work as commission agent and provide transport to Appellant No. 1; the payment is used to be received directly by the drivers after delivery of the goods at the consignee's end and in case the driver did not report back for the next 3-4 days, it was presumed that the goods had reached the consignees end. Further, the name of the Applicant No. 1 on one GR No. 34 had been written not by Shri Sanjay Garg, but by his brother, whose statement has not been recorded and on GR 187, there is no mention of the name of the Appellant No. 1 at all. No statement of the drivers concerned has been recorded by the Revenue to establish that the finished goods manufactured by the Appellants were removed without payment of duty. The other transporters have not been produced for the purpose of cross-examination nor the statements of drivers who might have actually carried the goods, had been recorded. Moreover no statement of any of the recipients of the goods had been brought on record. Thus the statements of the transporters have remained uncorroborated and also suffers from the short coming of being not being cross-examined by the Appellants. It has been the settled law that the liability cannot be fastened on an assessee on the strength of documents seized from the possession of third party. There should be some corroborative evidence/material. The Tribunal has in the case of Emmtex Synthetics Ltd., supra, when the charge of clandestine removal was made against the Appellants therein out of yarn received from a third party based on the diary, loose documents and packing slips allegedly recovered from Shri B.M. Gupta, Vice President of the Supplier Company, held that "no presumption on the basis of uncorroborated, uncross-examined evidence of B.M. Gupta and the alleged entries made by him in the private diary, loose sheets, charts, packing slips could be drawn about the receipt of polyester yarn by the Appellants from the company, M/s. HPL, in a clandestine manner during the period in question. Similarly, no inference could be legally drawn against the Appellants of having manufactured texturised yarn out of the said polyester yarn and the clearance thereof, in a clandestine manner without the payment of duty." The Tribunal had also referred to the decision in Oudh Sugar Mills Ltd. v. Union of India, 1978 (2) E.L.T. (J172) wherein "the Apex Court has observed that no show cause notice or an order can be based on assumptions and presumptions. The findings based on such assumptions and presumptions without any tangible evidence will be vitiated by an error of law". The Tribunal also took note of the decision in Kamal Biri Factory and Shri Khushnuden Rehman Khan v. CCE, Meerut - 2003 (161) E.L.T. 1197 (T) = 1997 (23) RLT 609 (CEGAT) wherein view has been taken that the allegations of clandestine removal of the goods will not stand established when based on the entries made by the assessee's employee in a diary or on the basis of third party's record in the absence of any corroborative evidence. It has also been the consistent view of the Tribunal that the statements of the witnesses, without allowing the assessee to test the
8|Page E/12563-12564/2018 & E/10064/2019-DB correctness of the same by cross-examining those witnesses; cannot be made the basis for holding the allegation against the assessee. (Takshila Spinners v. CCE, supra). Similar views have been expressed by the Tribunal in the case of Haryana Petrochemicals Ltd., supra wherein the Tribunal has held that reliance cannot be placed on the documents maintained by a third party "who did not have the courage to come forward for cross-examination in order to test the veracity and correctness of the private record maintained by him." It has also been held by the Tribunal in the case of Kothari Synthetics Industries v. CCE, Jaipur, 2002 (141) E.L.T. 558 (T) that entries made in the transport Register of the transport company could not be accepted as a conclusive proof of clandestine receipt of goods from that transport company for want of corroboration from any tangible evidence. Following the ratio of these decision, the duty demand cannot be upheld solely on the basis of uncorroborated statements and records of transporter. The statements tendered by the labourers can also not be relied upon by the Revenue as these persons were not produced for being cross-examined. Moreover, there is no corroboration of their statements with regard to the Trucks by which the goods were allegedly removed or the persons who received the goods. 6 E/12133, 12451 & 12559/2010-SM The Truck driver Shri Shiv Bahadur Yadav has also not been cross-examined and cleaner Shri Rakesh Kumar had deposed that the Bills/Invoices are supposed to be with the Driver and he being cleaner had no knowledge.
10.The confirmation of duty in respect of 149 consignments is also based on the records seized from the premises of M/s. Chitra Traders and not on the basis of any record seized from the premises of the Appellant-company. The Revenue has not been able to adduce any corroborative evidence to show the movement of goods from the premises of the Appellant-company to the premises of M/s. Chitra Traders or the Customers whom the goods were sent directly to as per the direction of Chitra Traders. No inquiry has also been made into these Customers who ultimately received the goods. There is no substance in the reasoning given by the Commissioner in the impugned order to the effect that "as the party did not challenge the fact of their business association with M/s. Chitra Traders, Delhi, the enquiry further down the line was not considered necessary." The onus of proof that the goods were removed by the Appellants without payment of duty and without entering the same in their records is upon the Revenue which cannot be discharged merely on the strength of the entries made in the records of a third party without linking the removal of goods from the premises of the Appellant-company. The mere fact that the Appellant-company had business relation with Chitra Traders, does not mean that they will be liable to each and every entry made by Chitra Traders in their books of account. It is also noted that none of the transporters and none of the labourers whose statements have been relied upon by Revenue have mentioned that the goods in question were delivered to Chitra Traders from the premises of the Appellants. The material brought on record may at the most create a doubt only. But doubt cannot take the place of evidence. The Revenue has, thus, not proved its case against the Appellants in respect of 149 consignments. We, therefore, set aside the demand of duty and penalty imposed on Appellant-company and consequently the demand of interest.
From the above decision which is based on various Supreme Court decisions, it is clear that when the brokers whose statements were recorded are not produced for cross examination such statements cannot be relied upon against the assessee. Therefore, as per the settled legal position, since in the present case witnesses, i.e. brokers and transporters were not allowed for cross examination, their statements cannot be relied
9|Page E/12563-12564/2018 & E/10064/2019-DB upon. In such a case, the only evidence left is the diaries/private records of the brokers. Since the statements cannot be relied upon, these records in isolation has no evidentiary valued particularly when the same was not corroborated with the statutory records of the appellant. In the case of M/s Charminar Bottling Co. (P) Ltd. (supra) on the issue of third party evidence, Tribunal has observed as follow:
6. Considered the submissions of both the sides. We have the charge of clandestine removal of bags-in-boxes by the Appellants has not been established by Revenue which has mainly relied upon the difference in figures of sale of the impugned product reflected in PMX Reports. It is not disputed by Revenue that these reports are prepared by M/s. Hyderabad Beverages and not by the Appellants. No evidence has been brought on record to show any excess production of the impugned product by the Appellants by way of procuring necessary raw materials. In a similar situation in the case of Moon Beverages wherein the charges of clandestine removal was made on the basis of computerized sheets of sales figures maintained by M/s. Parle Exports Ltd. whom the figures were sent by the assessee, the Tribunal has held that "the charge of clandestine removal cannot be established on the basis of one single factor.....Other corroborative evidence such as evidence of other inputs required for manufacture of aerated waters namely sugar, carbon dioxide being purchased and utilized in the manufacture of the final 7 E/12133, 12451 & 12559/2010-SM product during the period in dispute is required. There is no such corroborative evidence in the present case. There is also no evidence of higher electricity consumption." In the present appeal before us also there is no corroborative evidence except the PMX Reports.
Revenue has also not contradicted the submission of the learned Advocate that the Managing Director of the Appellants was not even questioned about these reports. In the case of Rama Shyama Papers Ltd, supra, wherein the records were seized from the premises of one of the customer of the assessee, the Tribunal did not uphold the charge of clandestine removal as "the Revenue has not been able to adduce any corroborative evidence to show the movement of goods from the premises of the Appellant's company to the premises of M/s. Chitra Traders or the Customers when the goods were sent directly to as per the directions of Chitra Traders... The onus of proof that the goods were removed by the Appellants without payment of duty and without entering the same in their records is upon the Revenue which cannot be discharged merely on the strength of the entries made in the records of a third party without linking the removal of goods from the premises of the Appellant Company." In the present matter also the Revenue has not brought any material on record to show that the excess bag-in-boxes said to have been sold by M/s. Hyderabad Beverages were removed from the premises of the Appellants. As show cause notice alleging clandestine removal cannot be issued based on assumption and presumption and as held by the Supreme Court in Oudh Sugar Mills Ltd. v. U.O.I., 1978 (2) E.L.T. (J 172), the findings based on assumption and presumption without any tangible evidence will be vitiated by an error of law. We, therefore, set aside the demand on charge of clandestine removal.
In view of above judgment, only on the basis of third party records, the demand cannot be confirmed alleging the clandestine removal. I also observe that despite the investigating officers recovered the diaries/ private records from the brokers no investigation was conducted to the effect who are the buyers of the goods, whether any payment was received by the appellant against the alleged clandestine removal. No effort was made to find out that whether the appellant have procured the excess raw materials to meet out the clandestinely manufactured and 10 | P a g e E/12563-12564/2018 & E/10064/2019- DB clearance of the goods. No excess electricity consumption was brought on record. Therefore, merely on the basis of third party evidence, that too not corroborated with any other evidence of the appellant, case of clandestine removal cannot be established. It is also observed that the appellant, Shri Atul Bansal, Director of M/s Bansal Castings has given ex- culpatory statement and he has not accepted any clandestine removal. In the case of Sulekhram Steels Pvt. Ltd. (supra), the Tribunal has considered that if there is no discrepancy in the raw material and finished goods, no incriminating documents recovered from the assessee, no record showing procurement of raw material for manufacturing of goods, extra payment to labourers, electricity consumption, transportation, etc. the clandestine removal was set aside. The facts more or less of the above judgment is similar to the facts of the present case. Similarly, in the case of Vishva Traders Pvt. Ltd. (supra), the Tribunal has held that in absence of the record to show purchase of raw material for manufacture of final products but when there is no statement of raw material suppliers, in this regard, the persons whose 8 E/12133, 12451 & 12559/2010-SM statements were recorded have not been produced for cross-examination, there is no investigation to indicate unusual use of electricity, it was held that no tangible goods to indicate that there was clandestine removal of goods. Accordingly, the demand and penalty were set aside. It was also observed that even though the transporter's statement was recorded but the transporter has not specifically accepted that the goods were transported from assessee's factory and only general statement was given by the transporter, particularly, when the transporters were not allowed a cross-examination, there is no evidence of transport of goods also. As regard Revenue's submission and case laws relied upon, I find that the case of clandestine removal is based on its individual facts. Therefore, as per examination of the facts of the present case, I find that the facts of the cases relied upon by the Revenue are not applicable in the present case. As per my above discussion and findings which is based on the settled legal position as per above cited judgments, I am of the view that Revenue could not establish the case of clandestine removal beyond any doubt. Therefore, the impugned order cannot be sustained. Hence, I set aside the impugned order and allow the appeals."
In the above facts, common investigation, common evidences in the present case also, the ratio of the above cited decision is squarely applicable in the present case.
11. As per our above discussion and finding, we are of the view that there is no sufficient material on record to establish clandestine manufacture and clearance by Appellant. We, accordingly, set aside the confirmation of demand, interest and imposition of penalty. Penalty imposed upon Shri Nagjibhai Dodiya, Partner of Appellant firm is also set aside. 11 | P a g e E/12563-12564/2018 & E/10064/2019- DB
12. As regards penalty imposed upon Shri Himanshu Nandlal Jagani, Broker, having held that there was no clandestine removal, clearance from the factory of Appellant, penalty upon said broker cannot be upheld.
13. In the result, all the appeals are allowed with consequential relief to the appellants.
(Pronounced in the open court on 29.08.2022) (RAMESH NAIR) MEMBER (JUDICIAL) (RAJU) MEMBER (TECHNICAL) PRACHI