Commissioner Of Central Excise, Trichy vs M/S. Bharat Plastics
- CitationAppeal No.118/2005(TRY)(ADK), dated 09.08.2005 passed by the Commissioner of Central Ex
Ratio decidendi
The rule this decision rests on
The Commissioner (Appeals) could not set aside a duty demand for clandestine removal by simply following an earlier Tribunal decision without evaluating the evidence on the record bearing on clandestine removal, namely under-invoicing, absence of raw material purchase records, the contents of a seized diary, improper accounting, suppression of clearances, and recorded statements disclosing shortfalls; an appellate authority that fails to do so acts in a manner prejudicial to Revenue, and the duty demand is restored where the uncontroverted material supports clandestine removal. Where the assessee has not contested the evidential material relied on by Revenue and has deposited the duty element, the duty demand stands and is confirmed, together with interest in the event of default. Penalty imposed in adjudication cannot be enhanced or revived in the Revenue's appeal where Revenue has not appealed against the penalty itself; absent an appeal by Revenue on penalty, no penalty survives on appeal, so the assessee is not to be placed in a worse position on penalty.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No.118/2005(TRY)(ADK), dated 09.08.2005 passed by the Commissioner of Central Excise (Appeals), Tiruchirapalli]
COMMISSIONER OF CENTRAL EXCISE, TRICHY APPELLANT
Versus
M/s. BHARAT PLASTICS RESPONDENT
Appearance:
For the Appellant Ms. Indira Sisupal, AC (AR)
For the Respondent Shri S. Muthuvenkataraman, Adv.
CORAM:
Honble Shri D.N. Panda, Judicial Member
Date of hearing/decision 12-08-2015
FINAL ORDER NO. 41026 / 2015
Revenue has come in appeal being aggrieved by the order of the Commissioner (Appeals) passed on 09.08.2005. That order discloses that he has not at all examined various aspects which were modality to the clandestine removal as was alleged in the show-cause notice. Those were under-invoicing, no record of the raw material purchased, the contents of the diary recovered in the course of investigation, improper accounting by the staff, recording of the facts to suppress its clearances etc. Added to that there were statements recorded as to the shortfalls found in the investigation. But learned Commissioner (Appeals) did not evaluate all these evidences which was in the record. He simply went by mere decision of the Tribunal and passed order in a manner prejudicial to the interest of Revenue.
2. Learned counsel appearing for the respondent states that the assessee has already deposited duty element and does not like to prolong the litigation. He prayed that the appeal may be disposed in accordance with law.
2. Considering the material facts above, remaining uncontroverted by respondent, the order of the Commissioner (Appeals) in so far as duty demand is concerned is reversed and adjudication to that extent is confirmed. So far as penalty is concerned, learned counsel says that in absence of appeal by Revenue, assessee should not be put into adversity. That being settled law, no appeal of Revenue survives on penalty. Accordingly, there shall be no penalty. Appeal is partly allowed confirming duty demand and interest if any in the event of default to pay the duty. (Dictated and pronounced in open court)
(D.N. PANDA) JUDICIAL MEMBER
ksr 25-08-2015
DRAFT Remarks
I II III
Date of dictation 12.08.2015
Draft Order - Date of typing 14.08.2015
Fair Order Typing 25.08.2015
Date of number and date of dispatch
4 E/01046/2005
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