C.C.E., Delhi-I vs M/S. Sri Balaji & Co

1. Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? Yes 3. Whether Lordships wish to see the fair copy of the order? Seen 4. Whether order is to be circulated to the Department Authorities? Yes

Appeal No. E/3299/2009-EX[SM]

[Arising out of Order-in-Appeal No.203/CE/DLH/2009, dated 29.09.2009 passed by the C.C.E.(Appeals), Delhi-I]

C.C.E., Delhi-I Appellant

Vs.

M/s. Sri Balaji & Co. Respondent

Appearance

Mr. RK Gupta, DR - For Appellant

Mr. Manish Pushkarna, Advocate - For Respondent

CORAM: Honble Mr. S.K. Mohanty, Member (Judicial)

Final Order No.54192/2015, dated 22.07.2015

Per: S.K. Mohanty :

Revenue is in appeal against the impugned order dated 29.09.2009 passed by, C.C.E.(Appeals), Delhi-I. The grievance of Revenue in this appeal is that the ld. Commissioner (Appeals) has overlooked the fact that the goods, i.e., Jai Kali brand chewing tobacco were in fact removed in a clandestine manner, which has been corroborated by direct evidence.

2. Heard both the sides and perused the records.

3. I find that the ld. Commissioner (Appeals) vide impugned order has recorded a detailed finding, holding that charges of clandestine removal has not been proved by the Central Excise Department. The relevant paragraph in the impugned order is extracted below:-

5. Regarding the confirmation of demand of Central Excise duty of Rs.4,65,150/- and Rs.9,303/- as Education Cess on 443 bags of Jai Kali brand Chewing Tobacco alleged to had been cleared clandestinely, I find that same has merely been raised on the basis of statement of Shri Vishal Garg, Proprietor and no other corroborative evidence has been brought on record by the department. They have submitted that the department has not verified the receipt of the goods sent to M/s Noureen Enterprises nor any statement been recorded from M/s Noureen Enterprises to whom goods have allegedly been supplied by the appellants. They have also submitted that alleged demand cannot be sustained as the same is based on statements as has been held by the Hon'ble Tribunal in the case of J.I. Gandhi Silk Mills Vs. CCE-2009(237) ELT 103 and Mahavir Metal Industries Vs. CCE-2008(232) ELT 71. I find sufficient force in this submission as mere statement unless corroborated by some other evidence does not carry much evidentiary value and cannot be made basis for establishing the charge of clandestine removal of excisable goods and fastening the duty liability on the manufacturer. I find that the charge of clandestine removal in respect of 443 Bags of Jai Kali brand Chewing Tobacco has not been established by the Department and demand of Central Excise duty of Rs.4,65,150/- and Rs.9,303/- as Education Cess is not sustainable and is therefore set aside. Penalty of an equivalent amount imposed under section 11AC of the Act ibid is also set aside.

4. In view of the fact that the ld. Commissioner (Appeals) has passed a detailed order, dismissing the charges levelled against the respondent, I do not find any infirmity therein, and therefore, the appeal filed by the Revenue is dismissed.

[Operative portion pronounced in the open court]

(S.K. Mohanty)

Member (Judicial)

SSK

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