MAGNUM STEELS LTD. Vs. UNION OF INDIA

JUDGEMENT

(1.) This Miscellaneous Appeal has been filed under Section 35 (G) of the Central Excise Act, 1944, by the appellant being aggrieved by the order passed by the Custom, Excise and Service Tax Appellate Tribunal, New Delhi on 09.12.2005 proposing following substantial questions of law :

(2.) It is mentioned in the appeal memo that appellant is engaged in the manufacture of twisted bars and m.s. of flats under Chapter 72 of the Central Excise Tariff Act, 1985. On 07.02.2002, a surprise check was carried out by the Officers of the Central Excise Department Indore along with two panch witnesses and a panchnama was prepared in presence of the authorized signatory of the company mentioning therein that physical verification of the excisable goods was done by counting the bundle and by weighing the twisted bars which were in excess as against that recorded entry in the daily production register. Explanation was obtained from the authorized signatory, namely, Shri Bibhuti Bhusan Gupta. His statement was recorded that the excess was on account of clerical mistake committed by him as the material which was prepared on 07.02.2002 was not entered into in the daily production register. A show-cause notice was served on the appellant who in turn submitted reply and demanded supply of weighment sheet and/or counting sheet and requested for the return of unrelied document in connection with show-cause notice. It was averred that in absence of actual counting & weighment, proper reply cannot be submitted. It was submitted that in case the panchnama is prepared after counting and weighing, then appellant was entitled to such counting and weighment sheet.

(3.) It is also mentioned that since goods were confiscated and thereafter a fine of Rs.3 Lakhs and penalty of Rs. 2 Lacs were imposed, therefore, on payment of such fine and penalty goods so confiscated must be restored in favour of the appellants. From the pleadings of the appellant, it is apparent that according to him provisions of Rule 25 (1) (b) cannot be read in isolation without reading Rule 25 1 (d) and the order of appellate Tribunal having been passed by a Single Judge Bench being contrary to Division Bench judgment of the same Tribunal, Single Judge should have referred the matter to a larger Bench and in any case it could not have passed orders contrary to the principles of natural justice. Learned counsel for the Revenue, on the other hand, submits that there is no justification to seek copy of weighment sheet/counting sheet inasmuch as the excess finished goods were detected and seizure was carried out after preparing proper panchnama on 07.02.2002, copy of which was supplied to the appellant. But the appellant challenged such proceedings by filing written submission on 16.12.2002 i.e. after a gap of 10 months. It is further submitted that physical verification of finished goods was carried out by counting and weighing of the bundles of finished goods as was admitted by Shri Vibhuti Bhusan Gupta, Authorized Signatory of appellant in front of the panch, and therefore, there was no requirement for preparing separate weighment sheet and counting sheet, as such procedure was adopted in front of authorized representative of the company and independent panch. Further statement of the authorized signatory Shri Vibhuti Bhusan Gupta was recorded under Section 14 of the Central Excise Act, 1944 and Shri Gupta had admitted that he was fully satisfied with the proceeding of panchnama. In case of CCE Mumbai Vs. Kalvert Foods India Pvt. Ltd. [2011 (270) ELT 643 (S.C.), it has been held that if statements of the concerned person are obtained without threat, force, coercion, duress or pressure, then such statements can be accepted as a valid piece of evidence.