2017 (11) TMI 1103 – RAJASTHAN HIGH COURT – 2018 (360) E.L.T. 477 (Raj.) – Clandestine removal – 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? – maintainability of appeal – section 35-G of CEA.
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Held that: – 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 – The fact which has been recorded by the Tribunal is a finding of fact and being last fact finding authority, it could not be disturbed.
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Cross-examination of witnesses – Held that: – In view of the finding given by the Tribunal and not cross-examination of witn
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as framed in Excise Appeal No.69/2017 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 demand of non-payment of Central Excise Duty of ₹ 3,17,41,935/- 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 bias or malice towards the assessee and cross examination of such persons would not have reduced the weight of
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ld not have reduced the weight of evidentiary value of their statements. 5. While passing the order, the Tribunal observes as under:- 115. In view of the above discussion and findings, I pass the following order:- ORDER (I) I confirm under Section 11A (2) of the Central Excise Act 1944, Central Excise duty of ₹ 3,17,41,935/- (including cess and other levies as applicable) (Rupees three crore seventeen lacs forty one thousand nine hundred and thirty five only) against M/s Goyal Tobacco Co. P Ltd., D-21, Krishnapuri, Old Ramgarh Mod, Jaipur and order its recovery from them along with interest leviable under Section 11AB/11AA of the Act ibid. (ii) I impose under Section 41 AC of the Act ibid read with Rule 19 of the Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules, 2010, a penalty of ₹ 3,17,41,935 ( Rupees three crore seventeen lacs forty one thousand nine hundred and thirty five only) on M/s Goyal Tobacco Co. P
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option is given to M/s Goyal Tobacco Co. P Ltd, B-21, Krishanpuri, Old Ramgarh Mod, Jaipur to redeem the same on payment of fine of ₹ 20,000/- (Rupees twenty thousand only) in lieu of confiscation. This option should be exercised within 90 days from the receipt of this order. At the time of release of the goods, Central Excise officer shall draw proper samples of the goods for future reference. (iv) I order under Rule 25 of the Central Excise Rules, 2002 order confiscation of 26 bags of Orchha Pouch of Unmanufactured Tobacco of MRP ₹ 2 each, total valued at ₹ 1,56,000/- and quantity of 4500 pouches of big Zipper of unmanufactured tobacco of MRP ₹ 4, total valued at ₹ 1800/-. However in terms of Section 34 of the Central Excise Act, 1944, an option is given to M/s Goyal Tobacco Co. P Ltd. B-21, Krishanapuri, Old Ramgarh Mod, jaipur to redeem the same on payment of fine of ₹ 25,000/- (Rupees twenty five thousand only) and ₹ 250/- (Rupees two hun
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of ₹ 3,17,41,935/- by holding that the statements of concerned persons used as corroboratory evidences were not legally sustainable as cross examination 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 bias or malice towards the assessee and cross examination of such persons would not have reduced the weight of evidentiary value of their statements. 7. Counsel for the appellant contended that the Tribunal has seriously committed an error in holding as under:- It appeared that an attempt was made by the noticee to prove that the seized three pouch packing machine were not in working condition and could not produce the notified goods. On request of the noticee photography of the seized machines was carried out under panchnama dated 13.7.2011. It appeared from the said photographs of the seized machined as well as Panchnama to the proceedings carried out on 13.7.2011 a
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Company, they used to pack the Laxmi brand tobacco pouches with the help of 3 automatic pouch packing machines installed at 269, Govind Nagar (East), Old Ramgarh Moad, Jaipur and one tobacco mixer. (iv) that since he joined the company , he used to pack the tobacco pouch packing Laxmi brand at 269, Govind Nagar (East). Old Ramgarh Moad, Jaipur as and when required; 9. Whereas further the statement of Shri Shyam Babu Goyal, labour of M/s Goyal Tobacco Co P Ltd, B- 21, Krishnapuri, Old Ramgarh Mode, 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 working as lobour for packing of Laxmi brand tobacco pouches of ₹ 2/- and ₹ 4/- for last 10 years. He was alotted the tobacco and packing material by Sh Pramod Sharma. (ii) that he used to pack ₹ 4/- Laxmi brand tobacco pouches manually with other 13-15 lobours. HE also looked after the lobour staff payment for packing which was mad
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crossexamine the Panch witnesses and the Seizing Officer of the goods seized in contravention of the FERA & Customs Duty Act and that the opportunity has not been given. Therefore, it is violative of natural justice. It is true that the petitioner had confessed that he purchased the gold had brought it. He admitted that he purchased the gold and converted it as a Kara. In this situation, bringing the gold without permission of the authority is in contravention of the Customs Duty Act and also Fera. When the petitioner seeks for cross-examination of witnesses who has said that the recovery was made from the petitioner necessarily an opportunity requires to be given for the cross-examination of the witnesses as regards the place at which recovery was made. Since the dispute concerns the confiscation of the jewellery, whether at conveyor belt or at the green channel, perhaps the witnesses were required to be called. But in view of confession made by him, it binds him and, therefore, i
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exemption. Under these circumstances, we do not find any illegality in the order passed by the authority warranting interference. 10. Learned counsel has also relied upon the decision in case of Naresh J. Sukhawani vs. Union of India, 1995 SCC Supl. (4) 663, which reads as under:- It must be remembered that the statement made before the Custom officials is not a statement recorded under Section 161 of the Criminal Procedure Code, 1073. Therefore, it is material peace of evidence collected by the Customs officials under Section 108 of the Customs Act. That material incriminates the petitioner including him in the contravention of the provisions of the Customs Act. The material can certainly be used to connect the petitioner in the contravention inasmuch as Mr.Dudani s statement clearly inclupates not only himself but also the petitioner. It can, therefore, be used as substantative evidence connective petitioner with the contravention by exporting foreign currency out of India. Therefore
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inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. The mind is prone to take pleasure to adapt circumstances to one another and even in straining them a little to force them to form parts of one connected whole. There must be evidence direct or circumstance to deduce necessary inference in proof of the facts in issue. There can be no inferences unless there are objectives facts, direct or circumstances from which to infer the other fact which it is sought to establish. In some cases the other facts can be inferred with as much practical as if they had been actually observed. In other cases the inferences do not go beyond reasonable probability. If thee are no positive proved facts, oral, documentary or circumstantial from which the inferences can be made the method of inferences can be made the method of inference fails and what is left is mere speculation on conjecture. Therefore, when an inference of proof that a fact in dis
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