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TMI Blog2013 (11) TMI 1388X X X X Extracts X X X X X X X X Extracts X X X X ..... e officers in course of road patrolling in the area of the sugar mill, found three tankers bearing registration no.MKE /91111. DNG/1308 and UP-21/8506 coming from the direction of the appellant's sugar mill. Those tankers were stopped and the same were found to be loaded with total quantity of 477 quintals of molasses involving duty of Rs.23,850/-. On enquiry with the drivers, while they produced challans issued by M/s.Suman Trading Company, Dhampur to M/s. Zuhaid Sheera Supply Company, they stated that the molasses in the tankers has been loaded in the factory of the appellant in presence of the representatives of the appellant and of M/s. Zuhaid Sheera Supply Company. The officers immediately visited the appellant's factory and checked th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses had been seized were also ordered to be confiscated with option to be redeemed on payment of redemption fine. Besides this, penalty of Rs.50,000/- was imposed on the appellant and penalty of Rs.2,000/- each on the drivers. This order of the Joint Commissioner was upheld in toto by the Commissioner (Appeals) vide order-in-appeal dated 30.04.2009 against which this appeal has been filed. 2. Heard both the sides. 3. Shri Alok Arora, ld. Counsel for the appellant, pleaded that the only basis of the Department's allegation against the appellant for confiscation of the molasses in tankers is the statements of three drivers, that other than that of statement of the driver, there is no other evidence against the appellant, that no shortage of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... termining the quantity of molasses stored in tanks, 10% allowance is to be given for foaming. Shri Arora also stated that the molasses is under physical control of State Excise Authorities and as such, no case has been booked by the State Excise Authorities. 4. Shri R.K. Verma, learned Departmental Representative, defended the impugned order by reiterating the findings of the Commissioner (Appeals). He, however, accepted that statements of the drivers relied upon by the department in support of allegation do not appear to have been given for the Appellant. However, he pleaded that from the facts narrated in the show cause notice, it is clear that the tankers in which the seized molasses was being carried, were intercepted while coming out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statements of the drivers. However, I find that the statements of the drivers have not been supplied to the appellant in spite of directions in this regard having been given by the Tribunal. Since there was no shortage of molasses in the appellants factory and on the contrary, there was excess quantity vis-`-vis the balance recorded in the RG-I register and since no samples from the stock of molasses seized from the tankers and from the stock of the molasses stored in the Appellants factory had been taken and tested, if cannot be said with certainty as to whether the molasses seized from the tankers was same as that which had been manufactured in the appellant's factory. In view of this, I find that the department's allegation that the mo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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