High Court Kerala High Court

The Commissioner Of Central … vs M/S.Electornic Control … on 18 June, 2008

Kerala High Court
The Commissioner Of Central … vs M/S.Electornic Control … on 18 June, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

C.E.Appeal.No. 17 of 2006()


1. THE COMMISSIONER OF CENTRAL EXCISE &
                      ...  Petitioner

                        Vs



1. M/S.ELECTORNIC CONTROL CORPORATION,
                       ...       Respondent

                For Petitioner  :SRI.JOHN VARGHESE, ASSISTANT SG

                For Respondent  :SRI.DINESH R.SHENOY

The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice V.K.MOHANAN

 Dated :18/06/2008

 O R D E R
                        C.N.RAMACHANDRAN NAIR &
                                   V.K.MOHANAN, JJ.
                   ....................................................................
                              C.E. Appeal No.17 of 2006
                   ....................................................................
                     Dated this the 18th day of June, 2008.

                                          JUDGMENT

Ramachandran Nair, J.

Heard the Assistant Solicitor General appearing for the appellant and

counsel appearing for the respondent. Pursuant to information that

respondent was engaged in clandestine removal of goods without payment

of duty, the department conducted search in the business premises of two

units of the respondent and in the residence of the proprietrix. Documents

pertaining to business transactions were seized. Evidence was also

collected from the Bank which showed withdrawals and deposits of massive

amount by the assessee. Statements were recorded from several employees

giving details of production, sales etc. Based on the materials gathered, the

Adjudicating Authority confirmed duty and penalty on the respondent. The

first appellate authority concurred with the finding of the Adjudicating

Authority. However, on further appeal, the Tribunal cancelled the demand.

It is against this order the Revenue has filed this appeal.

2. We have gone through the Tribunal’s order and the orders of the

two lower authorities. We find that the Tribunal has considered only the

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grounds of appeal raised by the respondent and they have proceeded to

assume that the department has not discharged their burden in proving

clandestine removal of dutiable goods. Strangely, the Tribunal has not

considered any evidence relied on by the department like the statements

recorded from the employees, admission made by the proprietrix at the time

of search and the evidence collected from the Bank pertaining to business

transactions. When prima facie evidence is established by the department,

particularly with reference to banking transactions, it is for the respondent-

assessee to explain why the transactions should not be treated as pertaining

to business. The Tribunal failed to note that reasonable inferences can be

drawn from evidence collected by the department, more so when the

respondent fails to explain the transactions brought on record. Strangely,

the employees statements which have evidentiary value have been ignored

by the Tribunal. However, we do not want to enter any finding on facts

based on evidence collected in the course of search and enquiry conducted

by the department. Counsel for the appellant contended that the

adjudication given up for Calicut unit does not bar the depatment from

pursuing against Quilon unit because contrary to what Tribunal has said,

facts relied on by the department are entirely different. Since we are

thoroughly dissatisfied with the order of the Tribunal which was issued

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without reference to the materials gathered by the department and based on

which adjudication was made, we set aside the order of the Tribunal with

direction to the Tribunal to rehear the matter after calling for the search

records and after considering the evidence relied on by the adjudicating

officer. The Tribunal is directed to issue fresh orders within a period of

four months from now. The parties will produce copy of this judgment for

timely compliance of the judgment.

C.N.RAMACHANDRAN NAIR
Judge

V.K.MOHANAN
Judge
pms