TaxTMI 
TaxTMI 
2009 (9) TMI 357
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....ct, 1944 (hereinafter referred to as the Act) read with Rule 173Q, Rule 209A of the Central Excise Rules, 1944 and Section 11AB respectively. 2. Principal grievance of Revenue is that the learned Commissioner (Appeals) without having material to discard two sets of invoices maintained by the respondents causing prejudice to revenue proving clandestine removal of goods, entertained mere pleadings of respondent and allowed relief to them. He discarded the second set of invoices issued by the respondents recovered in the course of investigation and has also discarded the statement recorded under Section 14 of the Act. The statement recorded from proprietrix and chief executive of the respondent although were worth of evidence and such state....
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....02 and exercising such power the appeal under Section 35B(2) of the Act was filed by him, which is well within his domain of jurisdiction. They argued that Revenue cannot be denied to file an appeal by the Chief Commissioner when a Commissioner is subordinate to him and as a superior he is expressly given power by law to exercise the powers of his subordinate under him. 5. Aforesaid rival submissions of both sides, compelled us to go into details of powers and jurisdiction of the Authority filing the appeal. We noticed that Revenue has exercised its right of appeal duly and nothing mala fide as to filing of appeal by the Chief Commissioner has been brought on record by the respondents to appreciate that a Commissioner was ousted to exerc....
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....ort since that decision was in a different context of Customs Act, 1962. Learned counsel's reliance on para 32 of the decision in Naffar Chandra Jute Mills Ltd. (supra) case also does not help him since, by law, a Chief Commissioner is permitted to exercise powers of a Commissioner by Rule 3 of Central Excise Rules, 2002. There is no circumstance brought out by the learned counsel to say whether by provisions of Section 35B(2) of the Act, a Chief Commissioner was prevented to exercise power of a Commissioner, by law, for the purpose of that section. Further reliance by the respondent in the case of Bombay Switchgear (surpa), also does not come to its rescue in the absence of any mala fide alleged. Remedy of appeal sought by Revenue clearly ....
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....s time-barred. But such submission of Revenue was repelled by the learned counsel for the Respondents on the ground that the learned lower appellate authority had properly examined the issue and considering relevant facts allowed the relief to the assessee. Further, Revenue has no ground to the issue of time-bar in their appeal. 7. Heard both sides and perused the records. 8. We have noticed that learned adjudicating authority has examined plethora of evidence in pages 2 to 7 of the Order-in-Original and made his finding considering submissions of the assessee. Allegation of clearance of excisable goods using bogus (second/parallel) set of invoices of a dummy unit namely M/s. STT came to light during investigation and that was establi....
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....cisely, we may state that weight of evidence on record was given go bye by the learned Commissioner (Appeals) with scanty regard to the principles of preponderance of probability. 10. The question of time-bar being a mixed question of fact and law, conduct of the assessee shall only decide its motive of evasion of duty to come to the decision on time-bar aspect. Once motive is determined, the time-bar is also determinable according to the ingredients of Section 11A of the Act. 11. Having noticed some of the legal infirmities in the order passed by the learned Commissioner (Appeals), as aforesaid, it would be proper to remit back the matter for reappraisal and evaluation of evidence giving regard to the weight of evidence and to come t....