Custom, Excise & Service Tax Tribunal
M/S Sunil Re-Rollers & Steels Pvt Ltd vs Cce, Raipur on 5 August, 2009
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
COURT NO.II
E/Appeal No.2464 /2006 -SM(Br)
(Arising out of order in appeal No. 127/RPR.I/2007 dated 31.5.2007 passed by the Commissioner of Central Excise (Appeals), Raipur)
M/s Sunil Re-rollers & Steels Pvt Ltd Appellant
Vs
CCE, Raipur Respondent
Appeared for Appellant : Shri Ravi Raghavan, Advocate Appeared for Respondent : Shri S.N. Srivastava, SDR Date of Hearing: 5.8.09 Coram: Honble Mr.D.N. Panda, Judicial Member Order No. /2009 Per D.N. Panda:
Learned Counsel Shri Ravi Raghavan submits that shortage of ingots to the extent of 43.980 MT found on investigation at the spot on 20th April, 2006 was not correct. When there was no deficiency of the stock, there cannot be allegation of clandestine removal. In defence, he submits that 18.590 MTs ingots were transported from one unit to another by two lorries. 22.885 MTs ingots were in the process of production. Without considering these two vital piece of evidence which appears at para 3-4 of the show cause notice, the authorities dealt the appellant deterrently holding that Managing Directors statement remained unrebutted without leading defence against inventory in Panchnama. But, when manufacturing record and other evidence is available to prove that there were goods existing for transport and the transport was genuine, that requires fair examination to reconcile the stock position. Similarly, he submits that the manufacturing record shows that ingots were in the process of manufacture being fed into the furnace. Accordingly, nothing can be concluded against the appellant without examination of such record showing existence of stock. In existence of the aforesaid defence, when the authorities have decided the matter against the appellant, they should not have overlooked to the basic evidence for a judicious view.
2. Learned DR submits that when panchnama was drawn, that was on the basis of facts existed at the relevant point of time. Therefore, the appellant is not entitled to any leniency what he pleaded today. He supports the order of the authorities below.
3. Heard both the sides and perused the record.
4. When the appellant came forward to explain as to the origin of the goods and destination thereof, such an evidence cannot be ignored. Authorities did not make any effort to examine whether there was actual transport of the quantity claimed by the appellants was and such transport was genuine and warranted in the facts and circumstances of the case. There may not be grievance further in respect of 18.590 MTs ingots if the authorities look into the matter afresh and consider the evidence that is already on record and also the evidence that is traced by the appellants to prove plea of movement of the goods. Bonafide of the transaction need consideration.
5. Similarly manufacturing record calls for thorough examination in respect of clearance of 22.885 MTs of goods which is claimed to be in the process in the furnace. If relevant piece of evidence suggest so, the appellant deserves a fair trial. It may be stated that any inference without testing or examining evidence means the adjudication is unsustainable.
6. Accordingly, the matter calls for remand to the learned Adjudicating Authority to weigh the evidence on record and test the same in the light of the pleading advanced as above and also defence pleaded at the initial stage of the proceeding including at the time of inventing taken on 20.4.2006 and subsequent thereto as per situations encompassed by para 3-4 of show cause notice. It is needless to mention that learned Adjudicating Authority shall grant fair opportunity of hearing to the appellant and pass a reasoned and speaking order to do justice to both sides. In the result, the impugned order is set aside and the matter is remanded to the learned Adjudicating Authority.
(Order dictated and pronounced in the open Court).
(D.N. Panda) Judicial Member MPS*