JUDGMENT :

MOHAMMAD RAFIQ, J.

1. This appeal under Section 35-G of the Central Excise Act, 1944 (for short ‘the Act’) seeks to challenge the judgment dated 05.09.2017 passed by the Customs, Excise & Service Tax Appellate Tribunal, Principal Bench, Court No. 1, New Delhi (for short ‘the Tribunal’) whereby the appeal filed by the appellant was dismissed.

2. The factual matrix of the case is that the appellant is a sole proprietorship firm owned and managed by Mr. Ravindra Kumar Gupta. Appellant is engaged in the business of manufacturing and trading of Electricals Industrial Cables falling under Chapter 85 of the Act. The appellant is carrying out said business from the premises situated at J-874, Sitapura, Jaipur. The appellant claims to run its business from the ground floor of that premises and asserts that he gave first floor of the same premises on rent to his brother Shri Ravish C. Gupta for his business. Assistant Commercial Taxes Officer, Anti Evasion, Zone- I, Jaipur conducted a survey at the said premises on 29.11.2010. According to the appellant, no incriminating document/material was found from ground floor of registered premises of the firm but later on, when the Officers visited the first floor of the said premises where the brother of the appellant was running his business, they seized various documents from there. Since the authorisation of the survey was in the name of the appellant, therefore, the seizure memos were also prepared in its name. On the basis of those documents, proceedings were initiated against the appellant by the Commercial Taxes Department, Jaipur. Later on, these very documents were also handed over to the Central Excise Department by the Commercial Taxes Department. Officers of Anti Evasion Wing, Central Excise, Jaipur-I also conducted survey at the registered premises of the appellant on 06.07.2011. During survey, certain additional documents from the registered premises of the appellant as well as from the room of Mr. Nathu Lal Jyotishi, who claimed that he was working as helper in the firm of the appellant’s brother M/s. Future Cooperation.

3. After the search, the appellant was served with a show cause notice dated 27.12.2011 alleging that the appellant indulged in clandestine removal of the excisable goods without maintaining statutory records, without issuance of invoices and without payment of central excise duty. It was therefore proposed to demand and recover central excise duty to the tune of Rs. 1,93,67,191/- from the appellant. The appellant filed reply to the aforesaid notice on 21.01.2013 and asked for opportunity to cross examine the witnesses, whose statements were relied by the department in the show cause notice. In the interim reply, the appellant maintained that he was not engaged in any activity of clandestine removal of the excisable goods. According to the appellant-assessee, no such opportunity was provided to him and the Adjudicating Authority passed order-in-original on 07.03.2013 raising a demand of Rs. 1,93,67,191/- with equivalent amount as penalty and interest thereon. The appellant filed appeal against the aforesaid order-in-original before the Tribunal which vide impugned judgment dated 05.09.2017 dismissed the appeal.

4. Hence this appeal.

5. Mr. Sanjay Jhanwar, learned counsel for the appellant argued that the appellant also contested the proceedings before the Commercial Taxes Department by challenging the assessment order passed by the Assistant Commissioner, Commercial Taxes Department before the Rajasthan Tax Board, which vide order dated 08.01.2014 remanded the matter back to the Assessing Officer under the Rajasthan VAT Act for re-examination of the fact that whether the seized documents belonged to the appellant’s brother. The Assistant Commissioner vide assessment order dated 09.06.2015 concluded that seized documents belonged to the appellant’s brother and had no relation with the appellant. It is argued that the Tribunal failed to appreciate that the ver