Customs, Excise and Gold Tribunal - Delhi
Commissioner Of Central Excise vs Harcharan And Brothers on 18 March, 2004
Equivalent citations: 2004(168)ELT454(TRI-DEL)
ORDER P.S. Bajaj, Member (J)
1. In this appeal the Revenue has challenged the correctness of the impugned order-in-appeal vide which the Commissioner (Appeals) has reversed the order-in-original and set aside the duty demand and penalty against the respondents as determined by the adjudicating authority.
2. The learned SDR has contended that there is ample evidence to prove the clandestine removal of the goods without payment of duty during the period in question (1-4-1994 to 30-9-1994) by the respondents and the Commissioner (Appeals) has wrongly ignored the same. Therefore, the impugned order deserves to be set aside.
3. On the other hand, the learned SDR has reiterated the correctness of the impugned order.
4. I have heard both the sides and gone through the record. The perusal of the record shows that the case has been built against the respondents for evasion of duty by clandestine removal of the goods during the period in dispute mainly on the basis of the documents seized by the Income Tax authorities from their different premises. No independent enquiry was carried out by the Department to ascertain if through the seized documents which included certain invoices and other records, any actual clearance of the excisable goods were effected by the respondents or not. No evidence even regarding the excess purchase of the raw material, consumption of electricity, etc., had also been collected by the Department to substantiate the charge of clandestine removal of the goods. The particulars of the alleged buyers/consignees of the goods given in the seized invoices were not even verified nor their statements were recorded during the investigation. The plea of the respondents that besides the manufacturing activities, they had income from their trading and marriage palaces, business was not considered by the adjudicating authority. Therefore, under these circumstances, in my view, the Commissioner (Appeals) has rightly observed that the charge of clandestine removal of the goods having been based on assumptions and presumptions and on the record, the correctness of which was never accepted by the respondents and not proved by the Department, cannot be sustained. He had rightly set aside the order-in-original vide which the adjudicating authority confirmed the duty demand and imposed penalty on the respondents. I do not find any illegality in the impugned order and the same is upheld. The appeal of the Revenue dismissed.