9911796707
TMI Blog2014 (6) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... of the opinion of Sh. Sarwate, his cross examination was necessary, as other handwriting expert Sh. A.N.Ganorkar has given a contrary opinion and both Sh. Subhash Joshi and Sh. A.C.Upadhyay have stated that signatures on the documents of M/s. Hans Travels are not their signatures. But cross examination of Sh. Sarwate was not possible on account of his death. Therefore, the opinion of Sh. C.T.Sarwate, by itself, has no evidentiary value and in view of the judgments of Apex Court, and various high courts, mentioned above it not even admissible as evidence. The allegation of un-accounted receipt of outer pouches for packing of retail pouches of Gutkha, Pan Masala and Mouth Freshner cannot be upheld, the presumption of un-accounted manufacture of retail pouches of Gutkha, Pan Masala and Mouth Freshner and their clearance without payment of duty, cannot be made and as such, the duty demand against the Respondent cannot be upheld. The Commissioner has dropped the duty demand only on the ground that merely on the basis of alleged receipt of outer pouches for packing retail pouches of Gutkha, Pan Masala & Mouth Freshner without any other evidence regarding procurement of other raw-ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was observed that there was regular production of Shimla brand laminates and outer pouches in their factory. However, M/s Flex Industries Ltd., Malanpur had issued invoices in the name of M/s MSS Food Products, Indore only in the month of June September 2001. The sales orders lying in the factory did not show the details of brand names of laminates / pouches to be supplied to the customers. The officers further observed that M/s Flex Industries were not showing details of brand wise production in their records. Such details were also not available in Central Excise invoices. However, the unit was drawing brand wise stock statement of finished goods in an interval of 2/3 days. On verification, 850 boxes of laminates and 270 boxes of pouches of Shimla brand were found in stock. Shri A.P. Singh, Sr.GM (marketing) of M/s. Flex Industries Ltd., Noida in his statement dated 08.01.2002 and 25.04.2002, interalia, stated that they had supplied Shimla Brand laminates/pouches to M/s MSS Food Products, Indore and also to other buyers. Shri Anil Sharma, A.G.M. (Commercial) of M/s Flex Industries in his statement dated 07.01.2002, and 25.05.2002 also confirmed that Shimla Brand of Laminates/Po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the details of M/s MSS Food Products. The statement of their Manager was also recorded. The search the office premises of M/s MSS Hans Travels, Indore also resulted in recovery of 5 bags of Shimla Pan Masala/Shimla Mouth Freshner Statement of their manager Shri Nitin Gupta, was also recorded along with the statement of Shri Arvind Gupta. 7. On scrutiny of the records resumed from M/s MSS Hans Travels, it was revealed that there were signatures of the consignees representative in token of having received the goods. It was further found that even though the laminates were booked by M/s Flex Industry Ltd. for other places, the goods were delivered/unloaded at Indore itself. Hand writing and finger-print Expert, Shri C.T. Sarwate, has opined that the signatures appearing on the receipts of M/s Hans Travels were, are of Shri Subhash Joshi and Shri Amarchand Upadhyay, the employees of the party M/s MSS Food Products. 8. During the course of investigation, it was found that M/s Flex Industries Ltd. had created certain accounts in the name of various parties, which were found to be fictitious. It was also found that the requisition for consideration of the laminate purchased from M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pheld on the basis of packing material allegedly supplied by M/s Flex Industries Ltd., without their being any other evidence of record of show the procurement to the raw-materials. 11. The Commissioner considered the above submission of the appellant and dropped the allegation by observing as under: The demand of Rs. 43,48,552/- has been worked out on the basis of delivery of outer pouches to M/s MSS Foods. The officers had searched the office premises of M/s Hans travels, Gwalior and seized certain Pan Masala/Mouth freshner for which there were no duty paying documents. It was found by the officers that the original copy of the bilty was being given to the person following the consignment at the time of delivery of the goods, the acknowledgement of the party was being taken on the second copy of the builty and the same was being sent to Gwalior. At the time of delivery of the goods to the party, signatures of the concerned party were also taken on the Luggage Delivery Challan and the same was kept at Indore for record. The Manager of M/s Hans Travels, Indore after examining their own documents mentioned that according to him mention of shimla in their records ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rprise, Nasik etc. Payment from these parties were received through DD. Further investigations revealed that out of the 5 parties mentioned, Demand draft in respect of one party was purchased from Chatarpur branch, Madhya Pradesh by M/s Manoj Provision Stores and listed DD 2 to 5 purchased by Shri Shyam Behari Agrawal of S.B.. Traders Chhattarpur from their Account No. 50060. Shri Manoj Agarwal whose statement was taken as a measure of follow up deposed that he purchases Shimla Gutka and Shimla Pan Masala and Shimla mouth freshner from M/s Shree Ganesh Sugandhi Bhandar, Jabalpur. He does not prepare any pucca bill and he has no relation with M/s Flex Industries. Instead of sending any payment for purchase of Shimla products in cash he purchased one DD for Rs. 80,000/- in the name of M/s Flex Industries, as per the instructions of M/s Shree Ganesh Sudgandhi Bhandar, Jabalpur. Shri Shyam Behari Agarwal of M/s S.B. Traders, Chhattarpur also deposed that he purchased Shimla Gutkha, Shimla Mouth Freshner etc. from M/s Shree Ganesh Sugandhi Bhandar, Jabalpur and he had received only one bill from them for such items and he does not know any firm in the name of M/s Sharafat Ali and M/s Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement of Shri Arvind Gupta and statement of some other persons was recorded who mentioned that Shimlawale meant manufacturer of Shimla pan masala. Also to further press their point, the Department has alleged that goods at Indore were reveived by the employees of the noticee. This has been tried to be proved through the report of Hand writing expert late Shri C.T. Sarvate. There are too many gaps in this scenario. Firstly main reliance has been placed on the records found at the premises of M/s Hans Travels. However, no efforts have been made to check as to who had been maintaining those records and their authenticity was also not verified. The statement of Shri Arvind Gupta, Manager of Hans Travels has been relied upon which has been challenged. There is a statement of Shri Arun Gupta, son of the proprietor of the firm of M/s Hans Travels, which indicates that they have nothing to do with M/s MSS Food Products. Though this statement is on record but no efforts have been made to confront Shri Arvind Gupta with this statement. Also on the basis of these records, it was alleged that the outer pouches were reaching Indore and were delivered to shimlawale . All this is nothing but a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at this entire chain is not strong and contains a number of loopholes which have been challenged by the noticee. The basic evidence is entry of outer pouches in the record of M/s Flex Industries Ltd., which shows delivery of Shimla Brand outer pouches to 13 parties who were found to be fictitious. As regards the records of M/s Flex Industries, Shri A.P. Singh, Sr. Manager of M/s Flex Industries has categorically stated that they did not inquire into the bonafides of their customers and they print whatever has been ordered by their customers unless there are instructions to the contrary by a party. I agree with this contention of Shri A.P. Singh as there is nowhere mentioned in the Central Excise Rules that manufacturers should verify the antecedents of the purchasers. He can sell the goods to any person whosoever comes to the factory to buy goods. M/s Flex Industries is also not supposed to check whether a particular brand which they are manufacturing and delivering belongs to the persons to whom delivery has been given or not. I find that legally there is nothing wrong with the statement of Shri Singh. As regards the records of M/s Hans Travels which are the other link in the chai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtment, I have no option but to accept the plea/defence of the noticee as mentioned above. It is indeed correct that duplicates of popular brands are being manufactured in a number of commodities. Moreover, the very starting point of the case i.e. the records of M/s Flex Industries indicates that the manufacturer is not supposed to go into the antecedents of the purchaser as this is not a requirement of the law. Accordingly, the Invoices under which the said outer pouches were cleared were as per the law and on payment of the duty leviable. The trail from the factory of M/s Flex Industries to the factory of M/s MSS Food Products Indore is very bumpy and nothing conclusive has emerged. Some of it is based on records which do not appear to be authentic, some on hearsay and rest on the basis of a Hand Writing Experts report which cannot be relied upon as has already been discussed. Moreover, the Noticee has contended that for the manufacture of the finished goods which could be put in the said outer pouches they would have been required to purchase raw material worth Rs. 65.37 Lacs. On the other hand, on conducting search of Noticee No. 1 s premises no discrepancy was found either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh Sugandhi Bhandar, or any other party which had issued any Demand Draft or any other payment in favour of M/s Flex Industries in lieu of purchase of pan masala/gutkha supposed to have been manufactured and cleared clandestinely by the noticee. Accordingly, there is no financial link which could be established by the department. Accordingly, there does not appear to be any challengeable evidence worth mention against the Noticee No.1. On the other hand the Noticee has cited a number of judgments in support of their contentions. 12. As regards the dropping of demand of Rs. 13,50,400/- he held that the revenue has not produced any evidence to show that the received lamination was not put to use by the appellant. The charges of clandestine removal are without any corroboration from the other sources and any evidence of purchase of excess raw-material. 13. For the above findings he relied upon various decision of the tribunal and in fact placed strong reliance on the Tribunal decision in the case of M/s Collector and others Vs. CCE, Kanpur, 1999(109) E.L.T.640(Tribunal). 14. The revenue in their memo of appeal has challenged the said order of Commissioner by submitting th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heela Traders, Nashik, M/s Salil Enterprises, Pune, M/s Mohit enterprises, Amravati were transported by M/s Hans travels, Gwalior and as per the statement of Manager of Hans Travels these were delivered at Indore only. (f) On verification, all the above parties namely M/s Sarasti Sons, Akola, M/s Sukhram Traders, Nashik and M/s Susheela Traders, Nashik, M/s. Salil Enterprises, Pune, M/s. Mohit Enterprises, Amravati, in the name of which M/s. Flex Industries Ltd., Malanpur, cleared these consignments, were found to be fictitious and non-existent. (g) The consignment cleared by M/s. Flex Industries in the name of above parties namely M/s. Sarasati Sons, Akola; M/s Sukhram Traders, Nashik and M/s Susheela Traders, Nashik, M/s Salil Enterprises, Pune, M/s. Mohit Enterprises, Amravati were found to have been delivered at Indore, only, irrespective of the destination and addresses mentioned in the invoices / bills issued by M/s. Flex Induatries. (h) Scrutiny of documents resumed from Hans Travels like receipts, luggage delivery sheets etc. revealed that the consignment of Shimla brand pouches invoiced in the name of fictitious parties were actually delivered at Indore, altho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from their Chhatarpur Branch by one M/s Manoj Provision Stores Chhatarpur from their account no. 1388 and the DD amounting to Rs. 50000/-, Rs.50000/-, Rs. 75000/- and Rs.80000/- credited by M/s. Flex Industries in the names of M/s. Sarafat Ali Co., Pune, M/s Shabnam Enterprises Nashik and Sarath Enterprises Nashik were purchased by Shri Shyam Behari Agrawal of M/s SB Traders Chhatarpur from their account no. 50060. (l) In the statement recorded under section 14 of Central Excise Act 1944 on 28.02.02, Shri Manoj Agarwal, proprietor of M/s. Manoj Provision Stores dealing in business of pan masala/ Gutkha stated that he was purchasing Shimala pan masala/Gutkha from one M/s Shri Ganesh Sugandhi Bhandar, Jabalpur and that the said pan masala/gutkha was being received from the said party under kaccha bill as no pucca bill for the sale of such pan masala/gutkha was being issued. He further stated that on the instruction of M/s. Ganesh Sugandhi Bhandar, from whom he was purchasing Shimla brand pan masala/gutkha etc., and for making payment for the pan masala/gutkha purchased by them, a demand draft of Rs. 80000/- in the name of M/s. Flex Industries Delhi was purchased by him and was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies had issued invoices for the laminates. Thus it was on record that the party received Shimla brand laminates/pouches for manufacture of Shimla pan masala which had been removed from M/s. Flex Industries in fictitious names. The said laminates / pouches had been used for clandestine manufacture and clearance pan masala, Gutkha and mouth freshener etc. and that payment for such supply of laminates/pouches had been adjusted by M/s. Flex Industries in fictitious names which clearly established the flow back of money from M/s. MSS Foods Products to M/s. Flex Industries through their dealers to whom clandestinely cleared pan masala/ gutkha was being supplied. (q) The evidence gathered in the case, therefore, provided clear cut proof of receipt unaccounted Shimla brand pouches by the party, clearances of their products made by them without payment of duty and adoption of a mode/ channel of payment whereby the payments for clandestinely cleared pan Masala were being adjusted against payment for unaccounted receipt of pouches. Although the clearance of Shimla brand pouches to fictitious buyers was on a much larger scale, the charges against the party have been limited only to the exte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in fact, was being received by the appellant. For the above purposes, they have also relied upon the handwriting expert opinion of Shri Sarwate, in respect of signatures of the two employees of the respondent appearing on the transport documents It is however not cross- was examined on account of his death. As against the above, the respondent have produced an opinion from another handwriting expert Shri Ganorkar, which is contrary to the revenue s stand. Ld. Commissioner has rightly relied upon the precedent decisions laying down that the handwriting expert opinion is a weak evidence. As such on the face of their being two contra opinions, not much reliance can be placed on the same. 17. Apart from the above, we note that the entire case of the revenue is wholly based on sale of packing material by M/s Flex Industries. As per the statement of official of M/s Flex Industries they have never enquired into the bonafide of their customers and were clearing the goods, who so ever came forward for placing order upon them. The Revenue has not produced any evidence beyond doubt that other buyers of M/s Flex Industries were in fact not available and inasmuch as M/s MSS Food Products a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessees factory at the time of their searches of the factory premises or go-down etc. The stock of pre-printed laminated fully tallied with the declared stock in the statutory records. 21. We also note that all the statement of the respondent s authorised representative are exculpatory in nature and there is no admission in any of the statement regarding their clandestine activities. The respondent have referred to various decisions of the Tribunal laying down with such clandestine activities are to be proved beyond doubt by production of positive and direct evidence and in the absence of the same, the charge of clandestine activity cannot be upheld. We note that the said legal issue is well settled law and does not require the support of any judicial pronouncement. We are not referring to the same so as to make order length. 22. In view of the foregoing, we note that there is no infirmity in the impugned order of the Commissioner. Revenues appeal is accordingly rejected. (Pronounce in the open Court on 03.04.2013) Per Sahab Singh:- I have perused the order recorded by Honble Member (Judicial) and I am not able to agree with my learned Sister. Therefore, I am reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Shimlawale were not other than manufacturers of Shimla brand Pan Masala of M/s MSS Food Products Indore. The Commissioner in his order has observed that Shri Arvind Gupta was the person managing the vehicles only. The Commissioner has stated that Mr Arun Gupta was the person knowing the working of M/s Hans Travels and Shri Arun Gupta in his statement has stated that M/s MSS Foods never took up the packets from M/s Hans Travels. I do not agree with this observation of the Commissioner in view of the fact that it was Shri Arvind Gupta who was managing the vehicles through which the goods were transported and delivered. I also do not agree with the observation of the Commissioner that Shimlawale need not necessarily mean the M/s MSS Food Products in as much as, there is another manufacturing unit located in Lucknow manufacturing chemicals in the name of Shimla who were also known as Shimlawale. I do not understand this finding of Commissioner is based on which facts. In the present case M/s Flex Industries and M/s MSS Food Products all are located in Madhya Pradesh in and around area of Indore. Therefore, as stated by Shri Arvind Gupta, the term Shimlawale will be applicable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent firms/companies were in fact going to appellant M/s MSS Food Products clandestinely to be used in the clandestine removal of the pan Masala/Gutka and the payment in respect of these laminates/pouches was being received by M/s Flex Industries through DD. This arrangement was made between the appellant and M/s Flex Industries just to evade the payment of Central Excise duty. 11. In view of the above, I am of the view that impugned order in original needs to be set aside and Revenue s appeal allowed. Difference of Opinion Whether Revenue s appeal is required to be rejected upholding the order in original as held by Hon ble Member (Judicial) Or Revenue s appeal is required to be allowed after setting aside the order in original as held by Member (Technical). Per Rakesh Kumar:- 1. The Respondent Company M/s. MSS Food Products, Indore, having their factory at plot No. D, Sector-E, Sanwar Road, Indore, are manufacturer of Pan Masala, Pan Masala containing tobacco (called Gutkha) and Mouth Freshner under brand name Shimla Vansh . All these products attract Central Excise duty at ad-valorem rate. These products are sold in retail packs (plastic pouches) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ha/Pan Masala and Mouth Freshner of the Respondent were recovered. These consignments despatched by M/s. Flex were consigned to the parties other than the Respondents. However on inquiry, the consignees of those consignments were found to be fictitious and non-existent. In this regard, the records of M/s. Hans Travels, Indore indicated that during the period from Oct. 2001 to Dec. 2001, 117100 nos. of outer pouches for Shimla Pan Masala 2-in-1, had been delivered to Sarasati Sons, Akola; 176800 nos. of outer porches for Shimla Pan Masala had been delivered to M/s. Sukhram Traders, Nashik; 377600 nos. of outer pouches for Shimla Mouth Freshner (20 gms.) had been delivered to M/s. Salil Enterprises, Pune; and 52000 nos. of outer pouches for Shimla Mouth Freshner had been delivered to M/s. Mohit Enterprises, Amravati. If these outer pouches were used for packing of retail pouches of Shimla Vansh brand Gutkha, Pan Masala and Mouth Freshner, the total duty involved on the goods packed in these outer pouches would be Rs.43,48,552/-. However, on inquiry, M/s. Sarasati Sons, Akola; M/s. Sukhram Traders, Nashik; M/s. Salil Enterprises, Pune M/s. Mohit Enterprises, Amravati, were fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Amravati through M/s. Hans Travels had actually been received by the Respondent and used in the manufacture of un-accounted Gutkha/Pan Masala and Mouth Freshner involving duty of Rs.43,48,552/- which had been cleared clandestinely. 1.2 It was also found that there was evidence from which it appeared that payments for the outer pouches being received by the Respondent from M/s. Flex Industries Ltd., in the name of fictitious parties were being arranged by the Respondents through some other parties. 1.3 Besides this, it was also found that while the Respondent during the period from June01 to Sept.01 had purchased 13500 outer pouches for Shimla Mouth Freshner under invoice dt.12.06.01, 16000 outer pouches for 2-in-1 Shimla Pan Masala under invoice dt. 20.08.01; 80000 outer pouches for Shimla Gutkha under invoice dt. 20.08.01 and 32000 outer pouches for Shimla Mouth Freshner under invoice dt. 09.09.01 from M/s. Flex, on 07.01.02, the date of officer s visit to the Respondents factory, there was no stock of these outer pouches, but in their records for the period from Sept.01 to Dec.01 period, they have shown consumption of only 21800 outer pouches of Shimla Gutkha and no p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determination of the points mentioned therein. 1.7 In pursuance of the order of the Board, Commissioner filed this appeal before the Tribunal. After hearing of this matter by the Tribunal on 08.01.2013, while Hon ble Member (J) upheld the impugned order of the Commissioner holding that there is no infirmity in it, Hon ble Member (T) in a separate order, ordered for allowing the Revenues appeal. The point of difference which has been referred to the undersigned for decision is as to whether the Revenue s appeal is required to be rejected upholding the order-in-original, as held by the Hon ble Member (J) or whether the Revenue s appeal is required to be allowed after setting aside the order-in-original, as held by the Hon ble Member (T). 2 Heard both the sides on the point of difference. 3 Sh. Sanjay.Jain, Ld. departmental representative, assailed the impugned order by reiterating the grounds of appeal and emphasized the following points:- (a) The duty demand of Rs.43,48,552/- against the Respondent Company is based on supply by M/s. Flex to the Respondent Company of 117100 outer pouches for Shimla Pan Masala 2-in-1 in the name of M/s. Sarasti Sons, Akola; 176800 outer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In this regard the Commissioner has wrongly ignored facts that:- (i) five demand drafts, in question, which had been credited by M/s Flex Industries in the account of fictitious parties in whose name the pouches of Shimla brand Gutkha/Pan Masala Mouth Freshner had been cleared, had been purchased from the Bank by two dealers namely M/s. Manoj Provisional Stores, Chattarpur and M/s. SB Traders, Chattarpur; (ii) as per the proprietors of these traders, these demand drafts were the payment for Shimla brand Gutkha/Pan Masala purchased by them without bills from M/s. Shree Ganesh Sugandhi Bhandar, Jabalpur and that against the payments to be made by these traders to M/s. Shree Ganesh Sugandhi Bhandar, the demand drafts had been made in the name of M/s. Flex on the instructions of M/s. Shree Ganesh Sugandhi Bhandar; (iii) M/s. Shree Ganesh Sugandhi Bhandar, Jabalpur is a dealer of Shimla brand Gutkha/Pa Masala Mouth Freshner manufactured by the Respondent and this fact is evident from the statement of Sh. Ganesh Shivhare, Proprietor of M/s. Shree Ganesh Sugandhi Bhandar, who has stated that they used to the purchase Shimla brand Gutkha/Pan Masala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ans Travels, Indore/Gwalior. The statement of Sh. B.S.Sharma proprietor of M/s. Saibaba Transport Services and the statement of Sh. Bal Krishan Sahu, Manager of M/s. Pitambara Freight Carrier, Gwalior, does not implicate the Respondents in any manner. In fact the officials of M/s. Flex have stated in clear terms that they were supplying the outer pouches for Shimla brand Gutkha/Pan Masala Mouth Freshner to parties other than the Respondent (M/s. MSS Food Products Ltd.). Though Sh. Arvind Gupta of M/s. Hans Travels in his statement, has stated that the consignments of outer pouches sent by M/s. Flex in the name of M/s. Sarasati Sons, Akola; M/s. Sukhram Traders, Nashik; M/s. Salil Enterprises, Pune M/s. Mohit Enterprises, Amravati, were being received by Shimlawale , and that there is no party called Shimlawale other than the manufacturer of Shimla brand Gutkha and pan Masala, this statement does not implicate the Respondent in any manner, as Sh. Arun Gupta has not named M/s. MSS Food Products Ltd. or their employees and it is a well established fact that there are a number of other parties also, who were un-authorisedly using the brand name of the Respondent on Gutkha/Pan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and M/s. S.B.Traders and secondly, there is no evidence to link M/s. Shree Ganesh Sugandhi Bhandar with the Respondent in respect of the payments made by M/s. Manoj Provision Stores and M/s. S.B.Traders to M/s. Flex Industries Ltd. by demand drafts. These payments may be on the instructions of other manufacturers of Gutkha/Pan Masala who were un-authorisedly using the brand name of the Respondent. There is evidence on record in form of complaints with police filed by the Respondent Company which shows that there were manufacturers of Gutkha and pan Masala who were un-authorisedly using the popular brand name Shimla of the Respondent. (e) Merely because the outer pouches for packing of retail pouches of Shimla brand Gutkha/ Pan Masala Mouth Freshner printed with the Respondents name as manufacture were being cleared by M/s. Flex to various other buyers, it cannot be concluded that those outer pouches belonged to the Respondent and had been received by the Respondent. It is common in trade that a popular brand is copied and unlawfully used by persons other than the legal brand owner. Tribunal in the case of Sulekhram Steels Pvt. Ltd. Vs. Commissioner of Central Excise, Ahme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M9 on their products and this shows that the goods seized from M/s. Shree Ganesh Sugandhi Bhandar, had not been manufactured by the Respondent but were duplicate goods. As regards M/s. Shivam Sales Corporation, Mauranipaur, they were manufacturing Gutkha Pan Masala and by un-authorisedly using the brand name Shimla of the Respondent in this regard, the Department also had conducted inquiries. As regards the goods seized from M/s. Hans Travels, the same had neither been manufactured by the Respondent not had been booked for passport by them. Therefore proceedings for duty demand of Rs.12,397/- and for confiscation of the seized goods have been correctly dropped by the commissioner. 5. I have considered the submissions from both the sides and perused the records. The un-disputed facts are that:- (a) Respondent manufacture Shimla Vansh brand Gutkha, Pan Masala Mouth Freshner which is sold in retail pouches with MRP of Rs. 0.50 per pouch, Re. 1/- per pouch or Re. 5/- per pouch; (b) the printed laminated plastic (plastic lamination) for packing of Gutkha/Pan Masala and Mouth Freshner in retail packs (pouches) of various MRPs was being purchased from outside and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard the main evidence relied upon by the Department is as under:- (a) statement dt. 25.01.02 of Sh. Arvind Gupta, Manager of M/s. Hans Travels, Indore wherein he, after examining certain documents luggage delivery sheets of M/s. Hans Travels, stated that the goods booked by M/s. Flex in the name of M/s. Sarasati Sons, Akola; M/s. Sukhram Traders, Nashik; M/s. Salil Enterprises, Pune and M/s. Mohit Enterprises, Amravati as consignees have been delivered to the representatives of Shimlawale and that, according to him there is no other party called Shimlawale except the manufacturer of Shimla brand Gutkha/Pan Masala. (b) report dt. 19.04.02 of Sh. C.T.Sarwate, a hand writing expert, giving opinion that the signatures on the luggage delivery sheets in respect of the consignments booked in the name of M/s. Sarasati Sons, Akola; M/s. Sukhram Traders, Nashik, M/s. Salil Enterprises, Pune M/s.Mohit Enterprises, Amravati are of Sh. Subhash Joshi and A.C.Upadhyay- the employees of the Respondent. 6.1 Sh. Subhash Joshi and Sh.A.C.Upadhyay, however, in their respective statements have denied having received any consignment of outer pouches in the name of the above menti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Respondent, which had been despatched by M/s.Flex to persons other than the Respondent, having been received and used by other un-authorized manufacturers of Gutkha/Pan Masala using the Respondents brand name un-authorisedly cannot be ruled out. Therefore, the statement of Sh. Arvind Gupta of M/s. Hans Travels stating that the consignment of outer pouches despatched by M/s. Flex Industries to M/s. Sarasati Sons, M/s. Sukhram Traders, M/s. Salil Enterprises M/s. Mohit Enterprises had been received by the representatives of Shimlawale , cannot be treated as an evidence of these goods having been received by the Respondent, as per, the findings of the commissioner in para 72 of the impugned order, which are not disputed, there were other un-authorized manufacturers who were also manufacturing Gutkha Pan Masala by un-authorisedly using the brand name of the Respondent. In this regard, the Department had not refuted the Respondent s plea that they had initiated legal proceedings for un-authorised use of their brand name Shimla against three persons:- M/s. Shivam Sales Corporation, Mauranipur, M/s. Ravindranath Co., Kanpaur and M/s. Shri Shrichand, Punjwani, Indore that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signatures by the Court itself Under Section 73 of the Indian Evidence Act, 1872; or (d) by admission of the person concerned owning up the handwriting/signatures as his handwriting or signatures; or (e) by testimony of an expert competent to make the comparison of handwriting or signatures on scientific basis. The evidence in form of opinion of a handwriting expert is opinion evidence. The science of identification of a person on the basis of his handwriting or signatures is based on the assumption that although a person s handwriting may vary as to its precise details, yet in its general habitual characteristics, it is the same, as personality of a person enters into his handwriting and becomes an unconscious and dominant habit which gives an identity to every handwriting. On account of the very nature of the science of handwriting and signature identification, it is not be an exact science like identification of a person on the basis of his finger prints, DNA or other biometric parameters. Hon ble M.P. High Court in case of Mohammad Umer Vs. State reported in 1986 (26) ELT-724 (M.P.), Hon ble Jharkhand High Court in case of Bidesh Singh Vs. Madhu Singh reported in 2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lled as witness and subjected to cross examination, is inadmissible in evidence. 6.3.4 In this case, the allegation against the Respondent Company is sought to be proved by the opinion of the handwriting expert Sh. C.T. Sarwate, as Sh. Arvind Gupta of M/s. Hans Travels has not named Sh. Subhash Joshi and Sh. A.C. Upadhyay, the employees of the Respondent, as the persons who had taken delivery of the consignments of outer pouches in his presence and had signed the delivery sheets and neither anyone familiar with their signatures has identified the signature on the luggage delivery sheets nor they have accepted the signature on the luggage delivery sheets as their signatures. For testing the correctness of the opinion of Sh. Sarwate, his cross examination was necessary, as other handwriting expert Sh. A.N.Ganorkar has given a contrary opinion and both Sh. Subhash Joshi and Sh. A.C.Upadhyay have stated that signatures on the documents of M/s. Hans Travels are not their signatures. But cross examination of Sh. Sarwate was not possible on account of his death. Therefore, the opinion of Sh. C.T.Sarwate, by itself, has no evidentiary value and in view of the judgments of Apex Court, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 54,720/- bearing Shimla brand seized from M/s. Hans Travels, Gwalior and their confiscation, the proceedings for the same have been rightly dropped as:- (a) There is no evidence to prove that the goods had indeed been manufactured by the Respondent and in this regard it has not been ascertained as to whether the batch number of the seized goods was the same as the batch number being used by the Respondent on their goods at that time; and (b) There is no evidence to prove that the seized goods had been booked for passport by the Respondent. 7.1 As regards the duty demand on the goods valued at Rs. 8,253/- seized from M/s. Shree Ganesh Sugandhi Bhandar and their confiscation, while the Respondent s plea is that these goods were duplicate goods purchased by M/s. Shree Ganesh from M/s. Shivam Sales Corporation and the same were bearing batch no. KK and UU, which had never been used by the Respondent during the period April 2000 to March 2003, this plea of the Respondent has not been refuted by the Department. 7.1.1 In fact if the Gutkha, Pan Masala and Mouth Freshner bearing brand name Shimla seized from the premises of M/s. Shree Ganesh Sugandhi Bhandar were duplicate g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retail pouches of Mouth Freshner, Shimla Gutkha, Shimla Pan Masala and Shimla 2-in-1 Pan Masala manufactured by them, which had been cleared on payment of duty and whose production and clearance are duly accounted for in the accounts maintained by the Respondent. 8.2 The basis of duty demand of Rs. 13,50,400/- as explained in Para 34 of the Show Cause Notice is that out of 80,000 outer pouches for Shimla Gutkha and 16000 outer pouches of Shimla 2-in-1 Pan Masala, received by the Respondent under invoices dt. 20.08.01, only 21,800 outer pouches for Shimla Gutkha had been used during Sept. 01 to Dec. 01 period as per records of the Respondent and as per the records, there was no production of 2-in-1 Pan Masala during Sept. 01 to Dec. 01, while at the same time there was no stock of these outer pouches at the time of officers visit to factory on 07.01.02. Thus the allegation in Show Cause Notice is failure of the Respondent to account for 58,200 outer pouches for Shimla Gutkha and 16,000 outer pouches for 2-in-1 Shimla Pan Masala which had been received by them. In the Show Cause Notice there is no allegation that there was no production of Shimla Mouth Freshner during Sept. 01 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excisable goods cleared clandestinely without payment of duty, which would shift the burden of proof to the Assessee and unless the assessee produces evidence to prove that there was no un-accounted receipt of raw-material or there was no un-accounted consumption of the raw-material which, admittedly, had been received, the duty demand on this basis can be confirmed by preponderance of probability. But for making such a presumption of fact under Section 114 of the Indian Evidence Act, which would shift the burden of proof to the assessee, there must be cogent and concrete evidence of the fact of un-accounted receipt of any one or more of the principal raw-materials or evidence of un-accounted consumption of the principal raw-materials which admittedly had been received. However, in this case, while the receipt of 80,000 outer pouches of Shimla Gutkha and 16,000 outer pouches of 2-in-1 Shimla Pan Masala in Aug. 01 is not disputed and is accounted, merely on the basis that during Sept.01 to Dec. 01 only 21,800 outer pouches of Shimla Gutkha had been used and no production of Shimla 2-in-1 Pan Masala had been recorded, it cannot be presumed that the balance quantity of 58200 outer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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