Custom, Excise & Service Tax Tribunal
Cce, Jaipur-I vs Brawn Medicaments Pvt.Ltd on 19 December, 2013
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
DIVISION BENCH
Court No.2
Appeal No.E/3382/2005
(Arising out of OIA No.234(MPM)/CE/JPR-i/2005 dated 29.8.2005 passed by CCE (Appeals), Jaipur)
Date of hearing/Decision: 19.12.2013
CCE, Jaipur-I Appellant
Vs.
Brawn Medicaments Pvt.Ltd. Respondent
Present for the Appellant: V.P.Batra, DR Present for the Respondent: None Coram: Honble Mr.D.N.Panda, Judicial Member Honble Mr.Manmohan Singh, Technical Member FINAL ORDER No.58718/2013 PER: D.N.PANDA None present for the respondent nor is there any adjournment application.
2. Ld. Commissioner (Appeals) doubted the entries in Sale-tax check post of State Government and only on such ground, he was of opinion that Revenue made case against the respondent on assumption and presumption and set aside the Adjudication order although there was allegation of clandestine removal corroborated by check post gate entries. Public records of the check post of the State Government exhibited how the goods of description and value (in para 28 of adjudication order) moved from the factory of the respondent to different destination through such check post. When the appellant has not challenged public record and entries in the public record,without such challenge ld. Commissioners (Appeals) inference in para 4 is erroneous. He was of the view that the record of State authority cannot provide a corroborative basis for evidence against clandestine removal. Such presumption by ld.Commissioner (Appeals) without calling for an enquiry report is contrary to law when preponderance of probability was in favour of Revenue.
3. We totally disagree with pulpable plea raised by ld.Commissioner (Appeals) who had no basis to scrap public record of the state Government. There were no materials before him to disturb finding of adjudication authority which was based on the movement record of the goods through two trucks bearing no. HR-29C-7263 and HR-29C-0805 (para 16 and 17 of the adjudication order), alongwith other trucks used for clandestine removal by the respondent. Respondent failed to answer on ST-39 form issued to the respondent and reason why ST-39 form should not be relied upon in the investigation remained unanswered. Therefore, there is no substance in the finding of learned Commissioner (Appeals), who has ignored very basic evidence merely doubting public records of the state government. He has also not looked into how a single gate pass was used as medium to make several clearances using the offending truck. When ld. Adjudicating Authority authority granted several opportunities to the respondent, he failed to inspect ST-39 form issued by it for reconciliation on the movement of the goods. That clearly shows that the respondent had pre-mediated mind to cause evasion.
4. In view of aforesaid observations and evidence on record, adjudication order is restored and appellate order is set aside. Revenues appeal is allowed.
(dictated & pronounced in the open court)
(MANMOHAN SINGH) (D.N.PANDA)
TECHNICAL MEMBER JUDICIAL MEMBER
mk
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Appeal No.E/3382/2005-Ex