Commissioner of Central Excise vs Dinesh Kumar Aggarwal

M.M. Kumar, J.—This order shall dispose of CEA Nos. 87 and 88 of 2009, which have been filed u/s 35-G of the Central Excise Act, 1944 (for brevity, ''the Act'') against the common Final Order No. 38-43/09-SM(BR), dated 7-1-2009 (A.3) passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (for brevity, ''the Tribunal'')- The Tribunal has dismissed the claim made by the appellant department primarily on two grounds. Firstly, it has been held that before issuance of show cause notice the amount of duty was paid and secondly there was no evidence to substantiate clandestine removal of goods.

It is now well settled that mere deposit of duty before issuance of show cause notice may not be sufficient to debar the revenue to invoke the penal provision. However, the revenue has to show that there was intentional clandestine removal of goods. We have gone through the order passed by the Tribunal, the order in appeal passed by the Commissioner as well as the order-in-original. From those orders it is clear that no evidence worth the name has been discussed or placed before us to show that there was intentional clandestine removal of goods or whether the respondent was conscious of the aforesaid fact. The order-in-original dated 30-6-2006 only records the conclusions that the dealer had intentionally evaded the Central Excise duty once it has been deposited after it has been pointed out by the revenue. Moreover, these findings are pure findings of fact. It is well settled that if the Tribunal has taken a particular view then it would not be open to the High Court to take another view on the facts by entering into re-appreciation of evidence. Even otherwise, nothing has been placed before us to show that there was intention to evade duty in terms of Rule 26 of the Central Excise Rules, 2002. There is, thus, no merit in these appeals warranting admission. Dismissed.