D.N.PATEL,J. - (1.) Tax Appeal No. 1 of 2008: This Tax Appeal has been preferred against the judgment and order passed by the Customs, Excise and Service Tax Appellate Tribunal (for the sake of brevity hereinafter to be referred to as "CESTAT"), Eastern Zonal Bench, Kolkata in Excise Appeal Nos. EDM3640 of 2006, whereby, CESTAT, Kolkata has partly allowed the appeal preferred by the appellant and for imposition of penalty of Rs. 35 Lakhs upon the appellant under Rule 173Q of the Central Excise Rules, 1944 for clandestine removal of the goods, the matter has been remanded for refixing the amount of penalty upon the company, but, so far as removal of the goods through seven gate passes are concerned, it is admitted fact that these goods were removed without payment of the duty and it is also admitted fact that the goods which were removed, were excisable goods. Nonetheless, in the High Court, learned counsel appearing for the appellant has argued out that the goods, which were removed, were not excisable goods because they are semi finished goods. The details of seven gate passes are as under: JUDGEMENT_67_LAWS(JHAR)5_2016.jpg So far as other fifteen duplicate gate passes are concerned, they were also recovered during the search carried out of the premises of the appellant by the central excise officer on 10th May, 1994. 2. For the ready reference, paragraphs 10.5 and 10.6 of the order passed by the CESTAT, Kolkata in Excise Appeal Nos. EDM 3640 of 2006 dated 30 th May, 2007 read as under: "10.5. Removal of goods through 7 (seven) gate passes under AnnexureB to SCN for delivery to M/s. Manipur Conductors, Imphal was not proved to be removal of goods on payment of duty on the date of removal, leading any evidence even before this forum and such removal having been found without payment of duty are held to suffer duty liability as well as penalty. 10.6. Allegation against 15 (fifteen) duplicate GP2 (gate passes) referred to in AnnexureC to SCN bearing identical numbers but different dates as mentioned in the said Annexure, recovered in the course of search, remained uncontroverted even at this stage without adducing any cogent or credible evidence. These gate passes are bound to be held not used for actual export but for homeconsumption of goods clandestinely removed. Such issue therefore calls for imposition of duty as well as penalty."
(2.) So far as the duty imposed upon the aforesaid clandestine removal of the goods is concerned, the same was confirmed and so far as penalty imposed upon the company is concerned, the matter was remanded by the CESTAT. There is also penalty, imposed upon the four directors of the company, as stated in paragraph no. 10.9 of the aforesaid order passed by the CESTAT, Kolkata. The penalty of Rs. 2 Lakhs each was levied upon the directors of the company, namely, Mr. G.P. Dalmia, Mr. Kali Kant Jha, Mr. Sanjay Dalmia and Mr. Sunil Dalmia, appellants in Excise Appeal Nos. EDM 3740 of 2006 before the CESTAT, Kolkata. The appeals preferred by the directors were rejected by the CESTAT, Kolkata and, hence, they have also preferred Tax Appeal Nos. 2 of 2008, 3 of 2008 and 4 of 2008. So far as Mr. Kali Kant Jha is concerned, he has expired and, therefore, he has not preferred any Tax Appeal in this Court against the order of CESTAT, Kolkata. The aforesaid all four persons are proprietors and Mr. Kali Kant Jha was a manager.
(3.) Having heard learned counsels for both the sides and looking to the facts and circumstances of the case, it appears that no substantial question of law is involved in this Tax Appeal. The argument canvassed by the learned counsel for the appellant is based upon facts. It is vehemently submitted by learned counsel for the appellant that the goods, which were allegedly removed without payment, were not excisable at all as they are semi finished products. This contention is not accepted by this Court, looking to the (a) Order passed by the Commissioner of Central Excise, Ranchi which is known as OrderinOriginal No. 118/MP/Commr/2005 dated 17th October, 2005, especially paragraph nos. 35 and 36 thereof (Annexure5 to the memo of this Tax Appeal). (b) Paragraph nos. 10.1 and 10.6 of the order passed by the CESTAT, Kolkata in Excise Appeal Nos. EDM 3640 of 2006. (c) Paragraph nos. 40, 41 and 42 of the OrderinOriginal dated 17th October, 2005. ;