2016 (3) TMI 478 - AT - Central Excise

Confiscation of packing material kept in unregistered premises - case of the appellant that no credit was taken on any of the packing materials; due records have been kept - Commissioner (Appeals) held that confiscation is not sustainable, however, he upheld the penalty - Held that - We find the said confiscation is in respect of packing materials which were kept in the unregistered premises opposite to the appellant s unit. We find that Rule 25 talks about contravention relating to excisale goods and contravention of Rules with intent to evade payment of duty. In the present case, packing materials are not excisable goods on which duty is liable to be paid by the appellant and hence we find that the lower authorities are in error for imposing penalty without specifying the nature of violation which will attract such penalty. Chewing tobacco of 399 bags kept in duty paid godown of the appellant - confiscation of these chewing tobacco on the ground that the same were not mentioned in the stock register and no document was produced in this regard - Held that - The appellants have submitted that out of these 399 bags, 165 bags were duly entered on page 107-109 of the stock register of duty paid godown, the same were received under proper invoices and bills. The said stock register was maintained in the nearby office. The remaining 234 bags were received back from the market and were unfit for consumption. We find that the appellant categorical assertion regarding availability of stock records for a part of the goods in their office records kept nearby and remaining goods being returned as unfit for consumption has not been duly considered by the lower authority. The contentions were rejected by the Commissioner (Appeals) as an afterthought. We find that the appellants have filed documents regarding 165 bags and regarding the remaining, we find that in the absence of allegation of non payment or clandestine clearance of such goods from the factory premises, order of confiscation and penalty under Rule 25 is not sustainable. No evidence was attributed for any clandestine or unaccounted clearance of these goods from the appellant s unit. Seizure of 203 bags of chewing tobacco from the premises of M/s.Kushboo Impex Pvt.Ltd - Held that - The appellant s plea is that identical goods were also manufactured by M/s.Shakti Packers and Shri Singhal in his statement dated 4.8.2004 did indicate that the same items might have been received from the M/s.Shakti Packers. We find that no cross verification was made on that and further no notice has been issued to M/s.Kushboo Impex from whose premises and custody the goods have been seized. Even the ownership of the goods have not been examined categorically. If the goods were sold by the appellant to M/s.Kushboo Impex from whom the said goods were seized then M/s.Kushboo Impex will necessarily be a party to the proceedings. The case on this issue will fail both on legal and factual basis. Seizure of 127 bags of chewing tobacco from the premises of M/s.R.P.Agencies - Held that - We find that no notice has been serviced to M/s.R.P.Agencies, though, the goods were seized from their premises and custody. In fact the proceedings for confiscation of goods, if any, in the above two issues is to be directed against the owner of the said goods. The appellants only were served notice for confiscation of these goods not to the parties from whom the seizure was made. We find that the impugned order suffers from serious legal infirmity. The main point being that there has been no determination or demand of central excise duty from the appellant in the proceedings.

Summary

Issues:
- Confiscation of packing material in unregistered premises
- Confiscation of chewing tobacco in duty paid godown without accounts
- Confiscation of chewing tobacco in dealer's premises after unaccounted clearance
- Confiscation of chewing tobacco in sub-dealer's premises after unaccounted clearance

Confiscation of Packing Material in Unregistered Premises:
The confiscation of packing materials kept in unregistered premises was challenged. The appellant argued that no duty demand was made, and the penalty was unsustainable as the packing materials were not excisable goods. The Commissioner upheld the penalty but found the confiscation unsustainable. The Tribunal agreed that the penalty was wrongly imposed without specifying the violation attracting it, as packing materials were not subject to duty payment by the appellant.

Confiscation of Chewing Tobacco in Duty Paid Godown:
Regarding the 399 bags of chewing tobacco in the duty paid godown, the confiscation was upheld due to missing entries in the stock register. The appellant claimed that 165 bags were properly recorded, while the rest were returned as unfit. The Tribunal found that the appellant's documentation for 165 bags was valid, and without evidence of clandestine clearance, the confiscation and penalty under Rule 25 were unsustainable.

Confiscation of Chewing Tobacco in Dealer's Premises:
Seizure of 203 bags from a dealer's premises led to confiscation based on a statement without cross-verification. The appellant argued that the goods might have come from another source. The Tribunal noted the lack of verification and notice to the dealer, concluding that the case lacked legal and factual basis.

Confiscation of Chewing Tobacco in Sub-Dealer's Premises:
Regarding the seizure of 127 bags from a sub-dealer's premises, the appellant clarified that the goods were purchased from another entity, not them. The absence of notice to the sub-dealer and the lack of proceedings against the actual owners rendered the confiscation invalid.

Conclusion:
The Tribunal found serious legal flaws in the impugned order, emphasizing the absence of a duty determination against the appellant. The order lacked proper analysis and was deemed legally unsustainable. Consequently, the appeals were allowed, and the impugned order was set aside.