Custom, Excise & Service Tax Tribunal
Cce, Chandigarh vs M/S.Friends Alloys (P) Ltd on 4 August, 2010
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066. BENCH-,,,,,SM Date of Hearing/Decision:04.08.2010 Excise Appeal No.E/2223 & 2224/08-SM [Arising out of Order-in-Appeal No.392-93/CE/CHD/2008 dated 05.08.2008 passed by the Commissioner (Appeals), Chandigarh]. CCE, Chandigarh Appellant Vs. M/s.Friends Alloys (P) Ltd. Respondent
Present for the Appellant :Shri.S.R. Meena, DR Present for the Respondent:Shri.Ajay Jain, Advocate Coram: HONBLE MR. D.N. PANDA, JUDICIAL MEMBER ORDER NO. _______________ DATED:04.08.2010 PER: D.N.PANDA Revenue has come in appeal against order passed by the ld. First Appellate Authority holding that the case was not proved against the appellant before him. He noticed the fact that the adjudicating authority has not given any finding as to under what law, the appellant was working and whether it was required to issue any invoice. The Department could not bring out any evidence to show the intention of evasion of duty by the appellant.
2. Shri Meena, ld. DR submits that when the appellants driver failed to show the document accompanying the goods, the nature of the claim of the respondent has failed to establish its bonafide. Therefore, confiscation was made. So also penalty was imposed. But the ld. Appellate Authority made the respondent charge free for no good reason.
3. Ld. Counsel appearing on behalf of the respondent submits that the accompanying document of the goods was Invoice No. No.000314 dated 22.9.06. The respondent was entitled to the area wise exemption for which no duty was paid. When the goods were supported by document and its title was established, confiscation was unwarranted and imposition of penalty was bad in law. Therefore, ld. Commissioner (Appeal) has passed appropriate order.
4. Heard both sides and perused the records.
5. There is no law to grant blanket exemption if there is abuse of law. But the show cause notice without bringing out abuse of law, has only proceeded under the premises that the goods carried by Truck No. HP64-5799 loading MS Ingots was without any supporting document. In the premises of a third party that is M/s. Mitul Steel Industries, investigation team found a truck on 22.9.2006. When the driver was examined, he stated that the goods were transported from the factory of the respondent which were loaded into the truck on 21.9.06 night and reached the destination on 22.9.06. Ld. Appellate Authority below has failed to scrutinize the origin and destination of the goods, the time involved as well as the distance involved, arrival time of the vehicle at the investigation spot, the time when the truck had passed through Check gate and also the time when the invoice No.000314 dated 22.9.2006 was raised by the respondent. Had the Authority below examined the departure time of the Truck and the time of preparation of the invoice, material facts would have come to light. He has also not examined the time between departure of the truck and the arrival of the truck at the destination. There is nothing examination done about the different times the truck has passed through different check gates. The Check gate seal appearing on the invoice 000314 dated 22.9.06 does not disclose the date. The receipt issued by Transport Authority also does not carry the name of the driver but name of somebody else. Certainly the decision of the learned Appellate Authority is miserable. But nothing can be done at this stage when the show cause notice has not proceeded in the manner the examination ought to have been done as highlighted above. When the allegations has not been done in appropriate manner the respondent has to succeed because he has not faced the charges at the initial stage of adjudication on the aforesaid points. Most painfully Revenues both appeals are bound to be dismissed. That is ordered accordingly.
[Dictated & Pronounced in the open Court].
(D.N.PANDA) JUDICIAL MEMBER Anita