SATKAR ENTERPRISES, GREEN AVENUE, MANDI AHMEDGARH Vs. CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI AND ANOTHER

JUDGEMENT

(1.) The appellant before us, challenges order dated 01.10.2013, passed by the Customs, Excise & Service Tax Appellate Tribunal, Principal Bench, New Delhi (hereinafter referred to as 'the Tribunal'), deciding an application for stay.

(2.) Counsel for the appellant submits that the Tribunal has erred in rejecting the application, for stay. The fraud alleged by the department, which forms basis of the impugned order, has not been proved. The Assessing Officer as well as the Tribunal have disregarded the end use certificate issued by the authority concerned, recording that palm oil imported by the appellant has been used in manufacture of soap. The fact that such a certificate was issued after due verification nullifies the finding of fraud, which is the only factor that has led the Tribunal to reject the application for stay. It is further contended that the impugned assessment order is null and void for failure of the Assessing Officer to allow the assessee, to cross examine relevant witnesses. It is prayed that as the impugned order as well as the assessment order are illegal, null and void, the appeal may be allowed and the condition of pre-deposit may be waived.

(3.) We have heard counsel for the appellant, perused the assessment order as well as the impugned order and find no reason whether in fact or of law to hold that the Tribunal has committed an error of jurisdiction while rejecting the application for stay. A perusal of the order passed by the Assessing Officer and the prima-facie opinion recorded by the Tribunal reveals that the appellant perpetuated a fraud as instead of using imported palm oil for manufacture of soap, it was diverted elsewhere. The appellant's contention based upon an end use certificate issued by the officer concerned cannot be accepted as the Tribunal has recorded a finding that the certificate was issued without physical verification and on the basis of record produced by the appellant. The appellant is unable to refer to any record that would prove manufacture of soap, transport thereof and particulars of parties to whom soap was sold. In order to place our conclusions in their correct perspective, it would be necessary to reproduce a relevant extract from the order passed by the Tribunal:-