TaxTMI 
TaxTMI 
2017 (10) TMI 1108
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....everse side were not recorded in their stocks properly. During the course of search, the respondent admitted that they have received 238.505 MT of ingots from 08.10.2000 to 10.10.2000 without any bill or invoice and they have not made any book of account like RG-1 and RG-23 A. They use these ingots for manufacturing of SS flats which were cleared without payment of duty. Therefore, the show cause notice was issued for demand of duty along with interest and for imposition of penalty on the respondent. The matter was adjudicated, duty was demanded along with interest and equivalent amount of penalty was confirmed against the main party and penalty of Rs. 10 lakhs was imposed of Shri Purushottam Kumar Gupta, Director of the Company. The said order was challenged before the Ld. Commissioner (A) who set aside the order of adjudication. Aggrieved from the said order, the Revenue is before me. The Respondent has also filed cross objection. 3. The Ld. Counsel for the respondent took the preliminary objection that the authorization is not as per section 35B of the Central Excise Act 1944. Therefore, the appeal is not maintainable. To support this contention, he relied on the decision in ....
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....t the records recovered were written by Shri Nepal Singh as he was never examined and confronted with these documents allegedly written by him whereas Shri Purushottam Kumar Gupta has confessed that Shri Nepal Singh has left the job, he was not aware of his whereabouts. As Shri Nepal Singh was not available to the investigating agency, how he could be examined at that time. During adjudication, the said Shri Nepal Singh was produced by the respondent for cross examination which clearly indicated that Shri Purushottam Kumar Gupta did not disclose the whereabouts of Shri Nepal Singh to the investigation agency with malafide intention to conceal the truth which could have been otherwise be unearthed on interrogation of Shri Nepal Singh. If the said, Shri Nepal Singh in his cross examination had denied the said document were written by him, or the words and letter written by him did not match with those appearing in the said documents, his claim was contended to the statement of Shri Purushottam Kumar Gupta and it is clear that averment made are whereabouts. Therefore, it appears that the Ld. Commissioner (A) failed to appreciate these facts and instead he relied on Shri Nepal Singh's ....
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....reveals as under: "The Order in appeal no. 52-53/CE/DLH/2009 dated 24.04.2009 was reviewed by the Committee of Commissioners, Central Excise Delhi-I and Delhi-II under Sub-section (2) of Section 35B of Central Excise Act, 1944 and the committee found the same illegal and unfair. Hence this appeal." But no opinion has been found. I find that this issue has been examined by the Hon'ble High Court of Delhi in the case of Kundalia Industries (Supra) wherein the Hon'ble High Court observed as under: "5. This was the opinion of the aforesaid two officers who rightly submitted the matter for consideration by the Committee of Commissioners. However, the Commissioner of Central Excise-I and Commissioner of Central Excise-II who allegedly constitute the Committee of Commissioners, simply appended their signatures to the aforesaid note on 7th January and 8th January, 2008 respectively. This shows that there was no meeting of the aforesaid two officers to consider the case. The record also does not disclose that these two officers applied their mind to the issue and recorded any opinion, as per the requirement of Section 35B of the Central Excise Act t....
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....azette notification in respect of posting of Shri Rajiv Aggarwal has not been issued though he has been promoted as Joint Commissioner vide order no. 63/2005 dated 29.04.2005 and has been posted at Central Excise, Delhi vide order no. 91/2005 dated 10.06.2005. In terms of the office memo dated 12.02.1958, 23.03.1958 and 28.05.1958 it has been stipulated that for Gazetted appointments, there should be a gazette notification. As no such notification has been placed on record for promotion and appointment of Shri Rajiv Aggarwal as Joint Commissioner, therefore, the adjudication order passed by him as Joint Commissioner is not sustainable in the eyes of law. Therefore, on that issue, I do not find any infirmity with the impugned order. Therefore, the said issue is also answered in favour of the respondent. Issue No. 4: I find that the statement recorded during the course of investigation on 08.03.2001 have been retracted by Shri Purushottam Kumar Gupta very next day and those retraction letters were placed on record wherein he has stated that the said statement did not contain the true facts as were dictated under the threat of arrest and the said Katcha slips were no....