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TMI Blog2010 (6) TMI 534X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods from the trucks on three different dates coming from M/s. Amar Foods Products with the invoices of M/s. Radha Enterprises as clearly admitted by the drivers - Therefore, the penalty on them is justified - Decided against the assessee - E/288-289/2005-SM(BR) - 638-639/2010-SM(BR)(PB) - Dated:- 16-6-2010 - Shri M. Veeraiyan, J. REPRESENTED BY : Shri Krishna Kant, Advocate, for the Appellant. Shri R.K. Gupta, SDR, for the Respondent. [Order]. - These two appeals arise out of a common order impugned order of the Commissioner (Appeals) No. 354 to 356-C.E./2004 dated 29-10-2004. 2. Heard both sides. 3.1 The relevant facts, in brief, are that as per investigation, M/s. Amar Food Products with Shri Chokey Lal as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Products. He also confirmed a demand of Rs. 3,27,159/- on M/s. Amar Food Products in the goods removed in the three trucks. In addition, he imposed penalty of Rs. 1,10,000/- on M/s. Radha Enterprises and there are other aspects to the order of the original authority which are not relevant for the present proceedings. 3.3 On appeal by the parties, the Commissioner (Appeals) upheld the confiscation of the goods. However, he held that M/s. Radha Enterprises has not placed any evidence to show licit receipt of the goods from M/s. Amar Food Products. Accordingly, he came to the conclusion that M/s. Radha Enterprises was basically created to manage surreptitious removals of M/s. Amar Food Products. He also held that in respect of goods seized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufactured by Amar Food Products and held to have been cleared clandestinely by M/s. Amar Food Products, a presumption of no sale to M/s. Radha Enterprises and therefore, M/s. Radha Enterprises was not owner is not warranted. (d) However, he submits that he is not disputing the duty liability confirmed against M/s. Amar Food Products as the appellant lost the relevant documents due to passage of time. (e) He seeks setting aside the fine sought to be imposed in lieu of confiscation on M/s. Amar Food Products. (f) He also submits that penalty of Rs. 5 lakhs on M/s. Amar Food products is excessive and is even more than the duty demand of Rs. 3,27,159/-. (g) He seeks setting aside the penalty on M/s. Radha Enterprises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been issued on 7-4-98 much after the date of provisional release of the goods that is 28-9-97. If the investigation proved that Radha Enterprises are not owner of the goods, such allegation should have been brought out in the show cause notice specially when the goods have been released to M/s. Radha Enterprises under bond executed by M/s. Radha Enterprises. Therefore, the confiscation adjudged without issue of show cause notice to M/s. Radha Enterprises cannot be upheld. Once the confiscation is not upheld, fine in lieu of confiscation of Rs. 6 lakhs requires to be set aside and accordingly, the same is set aside. 7. A penalty was imposed by the original authority to the extent of Rs. 5 lakhs on M/s. Amar Food Products when the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X
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