Custom, Excise & Service Tax Tribunal
M/S Amtech Industries vs Commissioner Of Central Excise on 23 December, 2015
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Zonal Bench, Ahmedabad -ooOoo- Appeal No. : E/10237/2013 [ Arising out of OIO-86/COMMR/2012 dtd 26.12.2012 passed by Commissioner of Central Excise-RAJKOT ] M/s Amtech Industries - Appellant(s) Vs Commissioner of Central Excise- RAJKOT - Respondent (s)
Represented by :
Appellant(s) : Shri P V Sheth, Advocate Respondent (s) : Shri Alok Srivastava, Authorised Representative For approval and signature :
Mr. P.K. Das, Hon'ble Member (Judicial) 1 Whether Press Reporter 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 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 CORAM :
Mr. P.K. Das, Hon'ble Member (Judicial) Date of Hearing / Decision : 23/12/2015 ORDER No. A/11888 / 2015 dtd 23/12/2015 Per : Mr.P.K. Das, The relevant facts of the case, in brief, are that the appellants were engaged in the manufacture of Ball and Roller Bearings classifiable under CH 84 of the Schedule to the Central Excise Tariff Act 1985. On 17.10.1996 the Central Excise Officers visited the appellants factory and seized various records and also recorded statements of the proprietor Shri Pareshbhai D Parmar and other persons. A show cause notice dtd 10.4.1997 was issued proposing demand of duty of Rs 38,39,505/- alongwith interest and penalty. The Adjudicating Authority confirmed the demand of duty alongwith interest and imposed penalty. The Tribunal by Order No. A/2219/WZB/AHD/2011 dtd 29.11.2011 set aside the adjudication order and remanded the matter to the Adjudicating Authority with certain directions. Again, the Adjudicating Authority in de-novo adjudication confirmed the demand of duty alongwith interest and imposed penalty. The appellant filed this appeal against the Adjudication order.
2. After hearing both the sides and on perusal of the records, I find that the main grievance of the Ld Advocate is that the Adjudicating Authority had not passed the Adjudication order in denovo proceedings following the direction of the Tribunal. The relevant portion of the Order dtd 29.11.2011 of the Tribunal is as under:
We find that an identical issue did came up before the Bench in the case of Rollwin Engineering Company (supra) wherein para 9 and 10 we have recorded the following findings:
9.We have? considered the submissions made by both sides. We find that the Commissioner has mainly relied upon the statements of various employees of the appellant company read with the statements of the Proprietor, vide which he has accepted the charges of clandestine removal. The subsequent retractions are only mechanical and cannot be made the basis for holding the said statement as having been given under duress. Apart from the statements, there are other documentary evidences recovered by the Visiting Officers from the appellants premises showing the sales of the ball bearings without bills and without reflecting the same in the statutory records. No doubt the charge of clandestine removal is a serious charge and Revenue is required to prove it by sufficient evidence. However, in the instant case, we find that the statements of the employees as also the Proprietor taken together and the documents referred to by the Revenue, corroborate the charge of clandestine removal. As such, we do not find any justification in the learned Advocates plea that the Revenue has not discharged the burden of establishing that the appellants have removed the final products surreptitiously.
10.However, we? find force in the appellants contention that the Commissioner has confirmed the demand by multiplying the sales by four, as if, the clearances to all the customers in all the cases, were reduced by the appellants to the extent of <th. The detailed examination of the statements of the various persons show that it is only in respect of some of the parties that they were indulging the clandestine removal and the clearances on record were to the extent of 20% and without record, it was 80%. As such, we are of the view that the learned Adjudicating Authority should have restricted the confirmation of demand of duties in respect of the clearances made to such parties as mentioned in various statements of the employees or those clearances where the clandestine clearance is established by documentary evidence. For the said limited purposes, we set aside the impugned Order and remand the matter to the Commissioner for de novo adjudication. The penalty quantum would also be adjudged by him afresh depending upon the quantification of duty liable to be paid by the appellants. The appeal is disposed of in above terms.
It can be seen from the above reproduced paragraph that we have discarded the arguments raised by the advocate as regards the retraction by way of affidavit as well as the arguments which are raised today by the learned counsel. However, at the same time we find that ratio of the para 10 would apply in this appellants case also and as such, we set aside the impugned order and remand the matter back to the adjudicating authority to re-quantify the duty demand based upon the various statements of the employees of this assessee and the clearances where clandestine removal is established by way of evidence. The impugned order is set aside and the matter is remanded back to the adjudicating authority for denovo adjudication who will follow the principles of natural justice before coming to a conclusion, as regards the quantum of the duty on the clandestine removals made and also will impose appropriate penalty. We find that the adjudicating authority has also ordered for the confiscation of the excisable goods seized from the different premises. This confiscation needs to be reconsidered by the adjudicating authority after his conclusion in the remanded matter.
3. The Ld. Advocate submits that they have submitted the statement of re-quantification of the demand as per the Tribunal order, which was not considered by the Adjudicating Authority. It is further submitted that the Adjudicating Authority had passed the order only following the statements of the proprietor, which was discarded by the Tribunal. For the proper appreciation of the case, the relevant portion of the Adjudication order is reproduced below:
When the above evidence is examined as per the directions of the Honble CESTAT, Ahmedabad, I find that the proprietor himself has clearly admitted the clandestine clearance of goods to the extent of 80% to Gujarat, Delhi, Mumbai etc. For covering up these clearances, they were procuring 80% raw material without bill. Also, he has admitted to having collected cash for such illicit sale. Once the proprietor of the Noticee has admitted the clandestine removal of goods of the extent of 80% of the total manufactured goods and only 20% billing was made by them naturally, the same version needs to be adopted for all the clearances of his firm and is not to be restricted to any particular buyer/customer.
4. The Ld Advocate on behalf of the appellant also contended that the imposition of penalty under Section 11AC of the Central Excise Act 1944 is unwarranted as Section 11AC was inserted after 28.9.1996 and the period of dispute in the present case is upto March 1996.
5. I find that the Tribunal had directed the Adjudicating Authority to re-quantify the duty demand based upon on the various statements of the employees of the assessee and the clearances of clandestine removal is established by evidence. It is contented by the appellant that they have submitted a statement of re-quantification of duty as per the Tribunal order. It appears from the Adjudication order that the Adjudicating Authority merely proceeded on the basis of statement of the proprietor and have not considered the statements of re-quantification filed by the appellant. In my considered view, the Adjudicating Authority is bound to decide the matter as per the direction of the Tribunal. It is noticed that the Revenue has not challenged the Tribunal order before the higher authority. So, it is binding upon the Adjudicating authority to follow the direction of the Tribunal order. Hence, the impugned order cannot be sustained.
6. In view of the above discussions, I set aside the impugned order. The matter is remanded to the Adjudicating Authority to decide afresh after following the direction of the Tribunal in Order dtd 29.11.2011. The Ld Advocate is directed to submit the statement of the re-quantification of demand again before the Adjudicating authority within one month from the date of receipt this order for perusal of the Adjudicating authority. As the matter is old one, the Adjudicating Authority is requested to decide as expeditiously as possible.
7. The appeal is allowed by way of remand.
(Dictated and pronounced in the Court) (P.K. Das) Member (Judicial) swami ??
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