Custom, Excise & Service Tax Tribunal
Om Furniture &Amp; Interiors vs Delhi - I on 27 September, 2018
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL,
WEST BLOCK NO.2, R.K. PURAM, NEW DELHI-110066
BENCH-SM
COURT -IV
Excise Appeal No.E/51062/2017 [SM]
[Arising out of Order-in-Appeal 73/CE/DLH/2017 dated
26.04.2017 passed by the Commissioner (Appeals), Central
Excise, Delhi]
M/s.OM Furniture & Interiors ...Appellant
Vs.
C.C.E., Jaipur ... Respondent
Present for the Appellant : Mr.R.S. Sharma, Advocate Mr. G.G. Gupta, Advocate Present for the Respondent: Mr.K. Poddar, D.R. Coram: HON'BLE MRS. RACHNA GUPTA, MEMBER (JUDICIAL) Date of Hearing/Decision: 27/09/2018 FINAL ORDER NO.53093 /2018 PER: RACHNA GUPTA The Department has made the compliance of order dated 21.06.2018. Mr. Abhinav has appeared in person alongwith entire relevant original record. At this stage, ld. Counsel for the appellant has prayed for the final disposal of the impugned appeal, which has been directed against the order of Commissioner (Appeals) bearing No.73 dated 26th April, 2017.
2. Shri R.S. Sharma and Shri G.G. Gupta, ld. Advocates appearing for the appellant have submitted that the appellants 2 ST/51062/2017 [SM] are engaged in manufacture, repair and trading of various furniture items. The Department vide show cause notice No.5723 dated 22nd April 2014 has alleged that the appellant were found engaged in clandestine procurement of raw- material used in the manufacture of excisable goods i.e. wooden furniture and fixtures as that of Sofa set, Double Beds etc. and were clearing the same without accounting for the same in their record without keeping themselves registered with the Central Excise Department. With these allegations a demand of Rs. 17,98,287/- was proposed alongwith the interest at the appropriate rate and the proportionate penalties. Prior to the said show cause notice, another show cause notice No.2717 dated 24.12.2012 was also issued proposing the confiscation of the unaccounted finished goods and both these show cause notices, the proposals there in were confirmed initially vide Order-in-Original dated 29.02.2016. However, the demand was reduced to Rs.5,29,405/- with the simultaneous confirmation about the proposal to confiscate the unaccounted finished products. Being aggrieved the appeal was preferred before Commissioner (Appeals), who vide the order under challenge has upheld the Order-in-Original. Resultantly, the present appeal.
3. The ld. Counsel has impressed upon that the entire case of the Department as is also apparent from the Order of Commissioner (Appeals) is based upon the record as that of kachcha parchies being allegedly recovered from the appellants 3 ST/51062/2017 [SM] premises. It is impressed upon that there was no record as may be categorized as kachcha parchies, whatever recovered by the Department, due to which this Bench had directed the production of the original record. Irrespective the record has been produced today; there is nothing as can be categorized as kachcha parchies. The findings therefore are alleged to be absolutely baseless and erroneous. In addition, it is submitted that the allegations as serious as that of clandestine removal have been levelled against the appellant, that too on some not existing documents. It was the fit case for appellant to be provided with an opportunity to cross-examine the Department witnesses. But no such opportunity was provided. Ld. Counsel has impressed upon a Circular No.1063/2/2018 dated 16.02.2018, which has been issued by the Department with an objective of pending cases to have been expeditiously decided. In the said Circular, the directions of Hon'ble High Court of Delhi in the case Flevel International vs Commissioner of Central Excise [2015-TIOL-2230-HC-DELCX] have been relied upon by the Department directing the Department to follow certain standards before finding a case of clandestine removal. Affording an opportunity for cross-examination to the assessee is impressed upon as a mandate in view of the said Circular, ld. Counsels have prayed the present matter to be remanded back to the adjudicating authority below with the directions to afford the opportunity of cross- examination to the appellant and to decide the matter afresh. Appeal is prayed to be disposed of in the afore said terms. In addition, 4 ST/51062/2017 [SM] the impugned show cause notices are objected as being barred by time. Since there is no evidence for proving the alleged mala fide on record, the question of imposition of penalty does not at all arises. For the said reason also the order under challenge is liable to be set aside. The case laws cited by ld. Advocates are mentioned below:-
1. C.Ex., Chennai v. Dhanavilas (Madras) Snuff Co.
2003 (153) ELT 0437 (Tri-Chennai)
2. North-West Switchgear Ltd. v. CCE, Delhi - 2014 (310) ELT 609 (Tri.-Del.)
3. CCE, Ahmd-I vs. Gopi Synthetics Pvt. Ltd. - 2014 (310) ELT 299 (Guj.).
4. Vikram Cement (P) Ltd.v. Commissioner -2012 (286) ELT 615 (Tri.-Del.)
5. Commr. v. Vikram Cement (P) Ltd. - 2014 (303) ELT A82 (All.)
6. Rina Dyeing & Printing Works v. CCE, Surat - 1 -
2007 (209) ELT 190 (Tr.-Mumbai).
7. Essvee Polymers (P) Ltd. v. CCE, Chennai - 2004 (165) ELT 291 (Tri.-Chennai)
4. While rebutting these arguments ld. DR has justified the order under challenge. Specific emphasis has been laid on para No.10 of the impugned order, wherein the Commissioner (Appeals) has been specific enough about recording that all slip pads and kachcha parchies are being so mentioned by the appellant's own employees and even by the owner of the appellant firm. It is based on their statement and tallying the 5 ST/51062/2017 [SM] same with the other record and also comparing the same with the values as mentioned in the CA Certificate that the adjudicating authority below has rightly confirmed the demand of Order in Original. The original record as brought today specifically the chart of calculation computing the final duty to be levied as Rs.5,29,405/- is self-explanatory. Accordingly, it is impressed upon that there is no reason for remanding the matter for de novo adjudication. Appeal is accordingly prayed to be dismissed.
5. After hearing both the parties and perusing the record, I observe and hold as follows:-
6. That the entire documents/record as has been produced today was recovered by the Department from the premises of appellant itself as were searched on 27.06.2012. It is apparent from the show cause notice that proper procedure of search as enshrined even under the provisions of Criminal Procedure Cord was duly followed by the Department as is apparent from the fact that 2 independent witnesses were joined. The detailed Panchnama was prepared on the spot in the presence of these witnesses. The entire record as has been produced today and on which have relied the adjudicating authority below was recovered during the said search. The record also shows that the statement of proprietor of the appellant was recorded not only at the time of search, but subsequently also i.e. on 4th July, 2012 and 5th July, 2012 In addition, statement of Shri Harbans..., Contractor was also 6 ST/51062/2017 [SM] recorded on 4th July, 2012. Various other statements of the employees were also recorded by the Department and each of them had contributed to one or the other documents as is produced today and as being relied upon by the Commissioner (Appeals). The perusal of the record produced shows a meticulous exercises on the part of the Department to have thoroughly gone through whatever slip pad, kachcha parchies etc. have been provided by the various persons examined during and post search. Though the ld. Counsel has alleged that none of the documents is in the form of kachcha parchies but the perusal of statements of the proprietor of appellant firm itself makes it clear that the record produced by him has been addressed as kachcha parchies and loose records. The said perusal falsifies any sanctity in the grievance of the appellant as far as the record as that of kachcha parchies is concerned.
7. The subsequent emphasis of the ld. Counsel for the opportunity to cross-examination is considered. I opine that no doubt the opportunity of cross-examination is another principle of natural justice and fair play as being a tool to the accused to confront the witness of prosecution/ Department so as to prove the defence/the case of the accused / assessee. But it is the simultaneous proposition of law that the opportunity of cross-examination becomes available to the assessee only after the Department takes a call about the persons whose statement have been recorded to be as the 7 ST/51062/2017 [SM] witnesses and in case their statements are recorded in the form of examination in chief then only the opportunity of cross- examination becomes available to the opponent. It is the apparent fact that all these statements which have been relied upon by the Adjudicating authority below were recorded in the presence of the appellant herein. From the order under challenge, it is clear that the Commissioner has even considered the request for cross examination by the appellant. It is also perused that the Commissioner has discussed the relevant case law where there is no mandate for the official witnesses to be cross-examined by the assessee.
8. Now reverting to the facts of the present case, I observe that apparently and admittedly the appellant is engaged in manufacturing activities as well and has not been registered under Excise. Though the appellant was claiming an SSI exemption but as apparent on record that despite affording that exemption of Rs.1.5 Crores, the Excise liability is still apparent against the appellant. The CA certificate of appellants own firm also corroborates the activity of the appellant as not only of re-selling but also of sale of manufactured items. Since ignorance of law can never be an excuse, the non-registration and non-discharge of the excise liability on the part of the appellant cannot be ruled out to be a strategy to avoid his liability. This particular fact supports my opinion for Commissioner to be right while declining the opportunity of cross-examination. It is also observed that the 8 ST/51062/2017 [SM] proprietor of the appellant had never retracted his statement. He himself has been stating about his transactions to have always been noted in the slip pads/ loose papers/ kachcha parchies etc. I find no justification in the grievance of the appellant. No case of remand as pleaded is opined to have been made out except that the same may be a time game strategy of the appellant. In the given circumstances and the findings above no infirmity in the order under challenge is opined. The same is hereby upheld.
9. The confirmation of confiscation of unaccounted finished goods is also opined to have no infirmity. In view of the above observations and opinion, it is clear that the appellant has failed to discharge his liability of tax. He is not entitled to SSI exemption, his income being beyond Rs.1.5 Crore. The non- registration despite doing excisable activity is rather opined to be the sufficient positive act on his part, which can be categorized as an act with intent to evade duty. Department was therefore justified to invoke the extended period of limitation. Resultantly, the imposition of penalty is also opined to have no infirmity. The order is upheld. Appeal is dismissed.
[Dictated and pronounced in the Open Court] (RACHNA GUPTA) MEMBER (JUDICIAL) Anita