|
2022-TIOL-537-CESTAT-DEL
Rajeev Kumar Vs CC
Cus - The issue involved is, whether penalty under Section 112 of Rs. 5 lakhs have been rightly imposed on appellant-Mr. Pawan Kumar Arora and penalty of Rs. 1 lakh each imposed on other appellants namely Rajeev Kumar and Shri Amrit Pal @ Shunti - Admittedly the gold in question was recovered from two Philippines nationals namely S.B. Taha & A.J. Macud, who in their respective statements have admitted the act of smuggling by them, as they have stated that they have brought this gold into India without declaring the same at Customs check post when they arrived at New Delhi by air - This statement have never been retracted by two Filipino nationals - Further, they have also not contested the SCN - Thus, the two Filipino national have admitted that act of smuggling for gain - So far these appellants are concerned, admittedly, none of them was found to be in possession of seized gold nor there is any detail of any alleged conspiracy hatched between them with the Filipino nationals in alleged smuggling - Admittedly, appellant Mr. P.K. Arora is a dealer/trader in gold jewellery and bullion and the other two appellants were his employees at the relevant time - Admittedly, Mr. P.K. Arora was not in Delhi on 18th July 2014 and had gone to Mumbai to attend a jewellery exhibition - Case of Revenue against these appellants have made out on the basis of their statements recorded at the time of investigation or the statement of co-accused - All such statements were retracted soon thereafter - Further, these statements have also not stood the test of cross-examination during adjudication proceedings - The two Filipino nationals have not taken the name of any of these appellants to the effect that the gold was to be delivered to these persons - Revenue had not discharged onus, that the statement recorded during investigation from these appellants and others were given freely and voluntarily by them - It is an established principal of law that suspicion, howsoever strong, cannot be treated as proof in absence of corroborative evidence - The only corroborative evidence is the recovery of 10 rupee note bearing serial no. 89L944808, from the appellant-Rajeev Kumar - Further, Mr. S.B. Taha, the Filipino national had also stated that he was to deliver the gold to person who would have come to him bearing the 10 rupee note having the said serial no. - Thus, allegation of abetment stands only against Mr. Rajeev Kumar - So far, Mr. Amrit Pal, is concerned, admittedly he had only accompanied Mr. Rajeev Kumar and was waiting outside the hotel, there is no complicity on his part - Appeal of Mr. Pawan Kumar Arora & Mr. Amrit Pal are allowed - So far, Mr. Rajeev Kumar is concerned, admittedly gold was not recovered from him, however there is strong evidence that he had gone on the said day to hotel Delhi Pride to receive the gold from the Filipino nationals - Accordingly, penalty imposed under Section 112 of the Act is upheld - Same is reduced from Rs. 1 lakh. to Rs. 25,000/-: CESTAT
- Appeals partly allowed: DELHI CESTAT
2022-TIOL-536-CESTAT-AHM
Jagdish Pala Vs CCE & ST
ST - The appellant is engaged in construction of Residential and Commercial Complexes and received the booking amount as well as instalment amount from his buyers - Revenue proceeded against them on the ground that they have evaded payment of Service Tax on services rendered by them to their customers in category of "Commercial or industrial Construction Services" during period 2004-2005 to 2008-09 - Whereas, an explanation was added by FA, 2010 in Section 65(105)(zzzh) of FA, 1994 - Further, the Board issued clarification on construction service vide Circular 151/2/2012-S.T. - Prior to 1-7-2010 builders/developers are not liable to pay service tax for Construction Service and here, period involved is from 2004-2005 to 2008-09 - The circular is binding on department and this circular makes it more than abundantly clear that construction service provided by builder/developer will not be taxable for period prior to 01.07.2010 - Impugned order is not sustainable, hence the same is set aside: CESTAT
- Appeal allowed: AHMEDABAD CESTAT
2022-TIOL-535-CESTAT-AHM
Kaneria Granito Ltd Vs CCE
CX - The appellant was imposed with penalty of Rs.5 Lacs on the ground that they failed to account for manufactured goods properly and on visit of officers, excess goods were found which was lying unaccounted hence goods were confiscated and redemption fine and penalty was imposed - Commissioner (A) has stated that appellant had in possession the physical goods namely, Polished vitrified Tiles without being accounted for in Central excise records for clearing the same from factory premises without issuance of Central Excise Invoice and without payment of Central excise duty - Appellant has stated in their statement that the unaccountal of goods is due to mis-match and cessation of factory and concerned staff has left the job therefore, even though the goods were found unaccounted for which the company has been imposed with redemption fine and penalty, personal penalty cannot be imposed on Chairman and MD of company who is not looking after the accountal of goods manufactured - The only lapse on the part is that being the Chairman and MD of company, he has not ensured that proper accounting of finished goods is being done or not for which a token penalty can be imposed - Accordingly, penalty is reduced from Rs. 5 Lacs to Rs.1 Lac - The impugned order stands modified: CESTAT
- Appeal partly allowed: AHMEDABAD CESTAT |
|
