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Demand (Contd.)
alone can take action against petitioners for breach of condition of
Advance Authorization or deemed export or for wrongful taking TED -
Also certain transactions not physically verified - Non-performance of
official duty of verification of goods by concerned officer cannot be a
ground to initiate action against petitioner-company who is holding valid
Advance Authorization and claimed benefit of deemed export in view of
para 8.3 of Foreign Trade Policy - As such, initiation of proceedings by
the Customs is an exercise of power in excess of jurisdiction - Section
28(4) of Customs Act, 1962 - Rules 25 and 26 of Central Excise Rules, 2002
— Rajhans Impex Pvt. Ltd. v. Union of India (Guj.) ..................... 346
— C.B.E. & C. Circular No. 83/83/94CX., dated 31-12-1994 clarifying that
addition of Methanol or Ethanol to Motor Spirit, does not amount to
manufacture, effective, Draft Circular Instructions F.No. 84/04/2007-CX
which intended to withdraw C.B.E. & C. Circular No. 83/83/94-CX.,
dated 13-12-1994 being never issued as a circular, cannot be relied upon -
Matter needs to be given a relook by considering the various alternative
submission made by appellant and remanded to Adjudicating Authority
- Section 11A of Central Excise Act, 1944 — Reliance Industries Limited v.
Commr. of C. Ex. and Service Tax, Rajkot (Tri. - Ahmd.) ................... 414
— Clandestine removal - Evidence - Section 9D(1) of Central Excise Act, 1944
- Extent and applicability - Not a provision vouched in a ‘negative sense’
to hold that statement given by person concerned shall not be acceptable
in evidence for the proceedings concerned - Fixation of duty evaded is
one thing and mulcting of penalty for offence in respect of such evasion
is different thing — N.R. Sponge Pvt. Ltd. v. Commissioner of Central Excise, Raipur
(Chhattisgarh) ..................................... 321
— Clandestine removal of goods - Evidence - Incriminating materials
retrieved from premises of assessee during inspection and physical
verification of stock reflected shortage of goods - Finding rendered not
solely with reference to contents of some ‘loose sheets’ recovered from
premises of assessee but on the basis of other incriminating materials
traced out and the statements given by different persons including
Director/Shift Supervisors/Accountant/ Cashier/Transporter and
Brokers/Commission Agent, compared and analyzed with reference to
records/materials seized/recovered - Thus finding rendered on the basis
of facts and evidence on record concurring with finding of adjudicating
officer and Appellate Authority is not liable to be interfered by High
Court in exercise of power under Section 35G of Central Excise Act, 1944
- No specific case for the appellant-assessee before the Adjudicating
Authority or before Commissioner (Appeals) or Tribunal that the
statement was obtained under ‘duress or coercion’ from Director or from
other persons/witnesses concerned, though, a vague averment made
before High Court - Thus no proper pleading of
‘threat/force/duress/coercion or pressure’ as being utilized by Officers
of Revenue to extract the statements - Allegation of violation of Section
9D of Central Excise Act, 1944 not attracted — N.R. Sponge Pvt. Ltd. v.
Commissioner of Central Excise, Raipur (Chhattisgarh).................... 321
— Limitation - Appellants registered with the Department and in continuous
correspondence with department and various visits of Audit teams taken
place - Moreover, Department issued a show cause notice earlier
demanding Service Tax in respect of (i) Affiliation fee; (ii) Inspection Fee;
(iii) Licence Fee, under the category of “franchise service” - Second Show
Cause Notice being based on same set of contracts and other documents,
EXCISE LAW TIMES  1st May 2020  15