Custom, Excise & Service Tax Tribunal
Cce, Delhi-I vs M/S. Sharp Mould & Dies on 18 November, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.2, R.K. PURAM, NEW DELHI-110066
BENCH-SM
COURT III
Excsie Appeal No.E/1295/2009-EX [SM]
[Arising out of Order-in-Appeal No.21/CE/DLH/2009 dated 24.02.2009 passed by the Commissioner (Appeals), Central Excise, Delhi-I]
For approval and signature:
HONBLE MR. S.K. MOHANTY, MEMBER (JUDICIAL)
1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3
Whether Their Lordships wish to see the fair copy of the Order?
4
Whether Order is to be circulated to the Departmental authorities?
CCE, Delhi-I Appellant
Vs.
M/s. Sharp Mould & Dies Respondent
Present for the Appellant : Shri.G.R. Singh, D.R. Present for the Respondent: Shri. Abhas Mishra, Advocate Coram: HONBLE MR. S.K. MOHANTY, MEMBER (JUDICIAL) Date of Hearing/Decision: 18.11.2015 FINAL ORDER NO. __54227/2015__ PER: S.K. MOHANTY
Revenue filed this appeal against the order of Commissioner (Appeals), whereby the adjudication order was set aside.
2. Brief facts of the case are that the Respondents are engaged in the manufacture of moulds of foot-wear machines. On 07.03.2006, the Central Excise Officers searched the factory premises of the Respondent and recorded the statement of the Proprietor of the Respondent. They have also searched the factory premises of the job worker M/s.Jai Ambay Etching Centre, Delhi and recovered a Nishu Exercise Book maintained by the partner of the job worker and a Student Exercise Book. They have also recorded the statement of the partner of the job worker. The Officers also recorded the statement of various manufacturers, who purchased the goods from the Respondent. A show cause notice dated 13.10.2006 was issued, proposing demand of duty of Rs.17,61,320/- alongwith interest and penalty. The adjudicating authority confirmed the demand of duty alongwith interest and imposed penalty on the Respondent. The Commissioner (Appeals) set aside the adjudication order.
3. Heard both sides and perused the records.
4. The main contention of the ld. DR is that the Commissioner (Appeals) had not obtained comments from the Department while passing the order. He has also cited case laws that the voluntary statement is enough to prove clandestine removal. On the other hand, the ld. Counsel on behalf of the Respondent contended that the documents recovered from the third party and they had disputed the authenticity of the recovery of the said documents.
5. I find that the Commissioner (Appeals) had given a finding on this issue as under:-
8. I find that the entire case of the department is based on the entries of the payments made in the said Nishu Exercise Book and Student Exercise Book recovered from M/s. Jai Ambay Etching Centre and Department has attempted to corroborate the same by statements of the appellants, job worker and three buyers. I find that the appellants have challenged the very recovery of the private records from the premises of the job worker i.e. M/s. Jai Ambay Etching Centre. I find sufficient force in this submission of the appellants that the department has not placed on record any Panchnama evidencing the recovery of the said private records from the premises of said job worker i.e. M/s. Jai Ambay Etching Centre. Though Shri Vijay Shankar Tiwari, Partner M/s. Jai Ambay Etching Centre vide his statement dated 13.09.2006 had stated at page 2 that said Nishu Exercise Book containing the details of account from 02.09.2004 to 28.01.2006 written by his own hands was seized by the Central Exercise from his firm on 13.09.2006 but no Pandhnama/Seizure Memo etc. of the date 13.09.2006 evidencing the search proceedings at his premises conducted on 13.09.2006 has been placed on record by the department. In other words, the date of search at the factory premises of M/s.Jai Ambay Etching Centre and the manner of recovery of the private records relied upon by the department have not been mentioned either in the show cause notice or in the impugned order and authenticity of the said private records is under doubt in the absence of some Panchnama/Recovery Memo drawn on the spot in the presence of two independent witnesses as the recovery has been shown from a premises other than belonging to the appellants against whom serious charges of clandestine removal has been levelled and therefore, prima facie they cannot be relied upon for establishing the charge of clandestine removal.
5. On perusal of the grounds of appeal and the written submission filed by the ld. D.R., I find that the Revenue failed to place any evidence on record against the above findings. Hence, I do not find any reason to interfere with the order of the Commissioner (Appeals). Accordingly, the appeal filed by the Revenue is dismissed.
[Operative part pronounced in the Open Court] (S.K. MOHANTY) MEMBER (JUDICIAL) Anita 0 2