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TMI Blog2015 (6) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... - Central Excise Appeal No. 209 of 2014 - - - Dated:- 3-11-2014 - Dr. Dhananjaya Yeshwant Chandrachud, C.J. and Pradeep Kumar Singh Baghel, J. Shri Rahul Agarwal and Namit Srivastava, for the Respondent. ORDER This appeal under Section 35G of the Central Excise Act, 1944 (the Act) by the Revenue arises from a decision of the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (the Tribunal) dated 13 March, 2014 [2014 (310) E.L.T. 404 (Tri.-Del.)]. 2. The Revenue has formulated the following questions of law : (i) Whether the Hon ble CESTAT has erred in not confirming the demand of Central Excise duty along with interest and imposition of penalties (as determined in Order-in-Original No. 12/ADC/ADJ/ 2005, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee can be made or not ; and (iv) Whether the Hon ble CESTAT has erred in not taking the cognizance of Hon ble Supreme Court s order in the case of Commissioner v. Nutech Polymers Ltd. [2009 (240) E.L.T. A116 (S.C.)] wherein it held that demand for clandestine removal was upheld by it relying upon statement of work manager of appellants which was never retracted. 3. The essential facts are that the assessee was engaged in the manufacture of Pan Masala and Gutkha. The factory and the residential premises of the assessee, its partners and dealers were searched by the officers of the Department on 20 January 2003. The search was conducted in the presence of one of the partners of the assessee. During the search, unaccountable cash c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Excise duty on the quantity of Pan Masala and Gutkha, which they had not shown in their records. 5. In the order of adjudication dated 17 November 2005, the Additional Commissioner, Central Excise Commissionerate, Kanpur (the Adjudicating Officer) recorded the following findings : In view of the above, I find that the party have been accounting for the wastage in raw material in their Form-IV register which they term as wastage in first stage and in their statements Shri Deepak Mehra Shri Davi Sarin have agreed that total quantity of Cut Supari shown as issued for manufacture of excisable goods is wholly converted into final finished goods i.e. Gutkha/Pan Masala. There will be no loss/wastage during packing also. They furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anufactured and removed by them clandestinely without payment of duty and, therefore, duty amounting to ₹ 1,71,149.00 and ₹ 32,88,080/- is demandable from them on such cleared goods. 6. Accordingly, the Adjudicating Officer ordered to : (i) confiscate the goods valued at ₹ 13,77,432/- recovered and seized from the premises of M/s. Basudeo Prasad Sons, with an option to redeem the goods on payment of a redemption fine of ₹ 5 lacs; (ii) confiscate the cash amounting to ₹ 19,43,000/- under Section 121 of the Customs Act, 1962; (iii) confirm the demand of ₹ 1,81,006/- under Section 11A of the Act; (iv) confirm the demands of ₹ 1,71,149/- and ₹ 32,88,080/- under Section 11A of the Act; and (v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er only with the modification that the separate penalties imposed upon the partners namely Sri Anil Sarin and Sri Davi Sarin were set aside. On the issue of penalties the Commissioner (Appeals) in an order 14 September 2006 held as under : From the discussions findings so far, it is clear that the appellant no. 1 were engaged in manufacturing and removing the goods in a clandestine manner and thus they have rendered themselves liable for penal action under Section 11AC. Regarding penalties imposed upon the partners namely, the appellants have contended in their grounds of appeal that no separate penalty should have been imposed upon the partners when the partnership firm was being penalized for the same offence. In this regard, I tend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inely removed. It was lastly urged that no reason has been recorded by the Tribunal while setting aside the penalties imposed the Adjudicating Officer. 11. The Adjudicating Officer has considered the statement of the assessee and, in our view, the Adjudicating Officer has appreciated the material evidence correctly. The statements made by Sri Dipak Mehra and Sri Davi Sarin have a material bearing on the issue. For the sake of convenience, the relevant part of the statements is extracted herein below : A. I have seen this raw material register signed in the same on today date it is the same register which is resumed from my factory on 20-1-03, yet there is a difference in Qty. of Sada Pan Masala Gutkha actually mfd. in the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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