Commissioner of Central Goods and Service Tax, Jaipur Versus M/s. Goyal Tobacco Company Pvt Ltd, Shri Rajesh Goyal, Director of M/s. Goyal Tobacco Company Pvt. Ltd.
Central Excise
2017 (11) TMI 1103 – RAJASTHAN HIGH COURT – 2018 (360) E.L.T. 477 (Raj.)
RAJASTHAN HIGH COURT – HC
Dated:- 19-9-2017
D. B. Central/Excise Appeal No. 69 , 70/ 2017
Central Excise
K. S. Jhaveri And Vijay Kumar Vyas, JJ.
For the Appellant : Mr. Kinshuk Jain
JUDGMENT
Heard on application (26168) filed in Excise Appeal (Excia) No.70/2017 to waive the defect/s.The application (26168) is allowed and the defect/s pointed out by the office are waived.
1. In both these appeals, common question of law and facts are involved therefore, they are decided by the common judgment.
2. By way of these appeals, the appellant has challenged the judgment and order of the Tribunal whereby Tribunal has allowed the appeal of the assessee reversing the view taken by the original authority imposing the liabil
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
nd cross examination of such persons would not have reduced the weight of evidentiary value of their statements.
4. Learned counsel for appellant has framed in Excise Appeal No.70/2017 the following substantial questions of law:-
(a) Whether the Hon'ble CESTAT is correct in holding that confirmation of demand of duty on impugned goods was not sustainable merely on the basis of presence of machines and certain statements of labourers and accountants whereas there were evidences in form of verification and still photography of machines and confessional statement of Shri Rajesh Goyal, Director ? and;
(b) Whether the Hon'ble CESTAT is correct in setting aside the penalty or Rs. 50,00,000/- by holding that the statements of concerned persons used as corroboratory evidences were not legally sustainable as crossexamination of witnesses was not allowed by the adjudicating authority whereas the assessee had not claimed that statements of said persons were factually wrong or they had any
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
s forty one thousand nine hundred and thirty five only) on M/s Goyal Tobacco Co. P Ltd., D-21, Krishnapuri, Old Ramgarh Mod, Jaipur. However benefit of reduced penalty of 25% as per proviso to Section 11 AC, is available to them subject to the condition that Central Excise Duty amounting to Rs. 3,17,41,935/- (including cess and other levies as applicable) and the interest payable thereon is paid within thirty days from the date of communication of this order andfurther subject to the condition that the benefit of reduced penalty (25% of Rs. 3,17,41,935/-) shall be available if the amount of penalty so determined has also been paid within the period of thirty days from the date of communication of this order.
(iii) I order under Rule 18(1) of the Chewing Tobacco and Un-manufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules, 2010, order confiscation of quantity of 72000 pouches of 'Laxmi' brand unmanufactured chewing tobacco pouches valued at Rs. 1
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
y five thousand only) and Rs. 250/- (Rupees two hundred fifty only) respectively in lieu of confiscation. This option should be exercised within 90 days from the receipt of this order. On release noticee shall pay applicable central excise duty on the said goods.
(v) I under Rule 26 of the Central Excise Rules, 2002 impose a penalty of Rs. 50,00,000/- (Rs. fifty lacs only) on Sh. Rajesh Goyal, Director of M/s Goyal Tobacco Co. P Ltd, B-21, Krishanapuri, Old Ramgarh Mod, Jaipur.”
6. Counsel for appellant has framed the following substantial question of law:-
(a) Whether the Hon'ble CESTAT is correct in holding that confirmation of demand of duty on impugned goods was not sustainable merely on the basis of presence of machines and certain statements of laboureres and accountants whereas there were evidences in form of verification and still photography of machines and confessional statement of Shri Rajesh Goyal, Director ? And;
(b) Whether the Hon'ble CESTAT is correct in setti
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
ll as Panchnama to the proceedings carried out on 13.7.2011 at the time of said photograph that machines were not in dismantled or scrap condition. If they are found cleared in a factory where a packing machine is installed irrespective of the fact whether it is use or not, or is in working condition or not. It appeared that this scheme is a self contained compounded levy scheme.”
8. It is contended that Tribunal has wrongly observed in paragraphs 8, 9 and 10 which reads as under:-
“Whereas satement of Shri Rakesh Kumar, lobour of M/s Goyal Tobacco Co P Ltd, B-21, Krishnapuri, Old Ramgarh Moh, Jaipur was recorded on the spot on 18.01.2011 under Section 14 of the Central Excise Act, 1944 wherein he interalia stated that:
(i) he was working as lobourer in M/s Goyal Tobacco Co. Pvt. Ltd. For last 2 years. In the company premises he used to pack Laxmi Brand tobacco pouch on an automatic pouch packing machine.
(ii) that the packing work was done in guidance of Sh. Shyam Babu Goyal
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
5 lobours. HE also looked after the lobour staff payment for packing which was made by Sh. Pramod Sharma.
10. Whereas statement of Shri Deepak Sharma, Production Assistant of M/s Goyal Tobacco Co P Ltd, B-21, Keishnapuri, Old Ramgarh Mod, Jaipur was recorded on the spot on 18.01.2011 under Section 14 of the Central Excise Act, 1944 wherein he interalia stated that
(I) that he was Production Assistant in M/s. Goyal Tobacco Co. Pvt. Ltd., at B-21, Krishnapuri, Old Ramgarh Moad, Jaipur;
(ii) that quite often on the direction of Sh. Pramod Kumar Sharma, he carried the bags of 'Laxmi' brand Tobacco Pouches manufactured at 269, Govind Nagar (East), Jaipur to B-21, Krishnapuri Moad, Jaipur. Laxmi Brand tobacco was packed by Sh. Dinesh Jogi under the guidance of Sh. Pramod Sharma.”
9. Counsel for the appellant has relied upon the following decisions of the Supreme Court in Surjeet Singh Chhabra vs. Union of India and Ors., decided by the Supreme Court on 25.10.1996 which is as under:-
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
were required to be called. But in view of confession made by him, it binds him and, therefore, in the facts and circumstances of this case the failure to give him the opportunity to cross-examine the witnesses is not violative of principle of natural justice. It is contended that the petitioner had retracted within six days from the confession. Therefore, he is entitled to cross-examine the panch witnesses before the authority takes a decision on proof of the offence. We find no force in this contention. The Custom officials are not police officers. The confession, though retracted, is an admissions and binds the petitioner. So there is no need to call panch witnesses for examination and crossexamination by the petitioner.
It is contended that under the Rules jewellery is exempted articles Kara being a symbol of the religious wear by the Sikh community, it is a jewellery exempted from the Act and it cannot be confiscated. In view of the admission that he had purchased gold, convert
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
vidence connective petitioner with the contravention by exporting foreign currency out of India. Therefore, we dot think that there is any illegality in the order of confiscation of foreign currency and imposition of penalty. There is no ground warranting reduction of fine.”
11. Learned counsel has also relied upon the decision in case of M/s Hans Steel Rolling Mill vs. Commnr. Of Central excise, Chandigarh, Civil Appeal No.2715/2003 decided on 10.03.2011, which reads as under:-
“It is thus well settled law that strict rules of the Evidence Act, and the standard of proof envisaged therein do not apply to departmental proceedings or domestic tribunal. It is open to the authorities to receive and place on record all the necessary, relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act. The material must be germane and relevant to the facts in issue. In grave cases like forgery,fraud,conspiracy, misappropriation, etc. seldom direc
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
ils and what is left is mere speculation on conjecture. Therefore, when an inference of proof that a fact in dispute has been held established there must be some material facts or circumstances on record from which such an inference could be drawn. The standard of proof is not proof beyond reasonable doubt “but” the preponderance of probabilities tending to draw an inference that the fact must be more probable. Standard of proof cannot be put in a straight Jacket formula. No mathematical formula could be laid on degree of proof. The probative value could be gauged from facts and circumstances in a given case. The standard of proof is the same both in civil cases and domestic enquiries.”
12. We have heard Shri Jain.
13. Before proceedings with the matter, this appeal is under 35-G where it will be difficult for us to reverse the finding of fact arrived at by the Tribunal that witnesses in the panchnama were not examined by the Commissioner of Excise.
14. The fact which has been reco
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
