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TMI Blog2016 (11) TMI 1172X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of duty. We also find that Raw materials cannot be confiscated under Rule 25 of Central Excise Rules, 2002. We therefore, modify the impugned Order-in-Original by setting aside the confirmation of demand of ₹ 13,06,19,045/- and setting aside the penalty of ₹ 13,06,19,045/- and setting aside the order for recovery of interest on ₹ 13,06,19,045/- and setting aside the penalty of ₹ 50 lakh on Shri Praveen Kumar Singhal and setting aside penalty of ₹ 20 lakh on Shri Yogendra Kumar Singhal and setting aside the confiscation of 31.6kg and 1282.4kg of Jeet brand lamination and confiscation of Jeet brand lamination and outer valued of ₹ 7,61,875/- and HDPE outer valued at ₹ 9,600/- and confiscation of 6417kgs of Jeet brand lamination & outer valued at ₹ 8,39,500/-. Appeal partly allowed - decided in favor of appellant. - Appeal No. E/388-390/2008-EX[DB] - Final Order No. 71062-71064/2016 - Dated:- 26-10-2016 - Anil Choudhary, Member (Judicial) And Anil G. Shakkarwar, Member (Technical) Shri K. K. Anand, Advocate for the Appellant Shri Rajeev Ranjan, Joint Commr. (A.R.) for the Department ORDER Per Mr. Anil G. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transported through M/s BFC and a different size transport document was prepared for the same. Therefore, the Officers of DGCEI collected information in respect of the goods carried by M/s BFC which were booked as Pashu Ahaar and presumed that all of them were cleared by M/s P J Aromatics clandestinely without payment of duty. They included all such clearances in Annexure-A to the show-cause-notice and alleged that M/s P J Aromatics cleared 9403 number of bags containing Gutkha cleared clandestinely without payment of duty in the guise of Pashu Ahaar transported by road transport. On the basis of documents seized during the said searches, they approached the Railway Authorities and requested Chief Divisonal Commercial Manager of Agra of Indian Railways to provide copies of 7 GRs and forwarding notes dated 12.12.2005. The Chief Parcel Supervisor of Agra Fort Railway Station provided copy of 7 GRs and forwarding notes to the Investigating Officers. Subsequently, the Officers scrutinized all the GRs book available at Agra Fort, Railway Station covering the period from 01.01.2003 to 14.12.2005 in present of Chief Parcel Supervisor, Agra Fort, Indian Railways and a chart showing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12.2005. (2) 1282.840 Kgs of Laminate pouches seized at Unit No.II of Noticee No.I. (3) 57 rolls of Lamination and 129 rolls of laminations and 13 bags of outer, totally valued at ₹ 8,39,500/-, seized at the godown of Noticee No.I at Mahajan Market, Balaji Nagar, Agra on 14.12.2005. (4) Jeet Brand Lamination Outer valued at ₹ 7,61,875/- and HDPE Outer bags HDPE bags valued at ₹ 9,600/- seized at the godown of NOticee No.I near Ajay Jewelers on 14.12.2005. 4. The said show cause notice also had proposal to demand Central Excise duty amounting to ₹ 13,06,19,045/- involved in Gutkha contained in 49956 bags alleged to be cleared without payment of duty on the basis of Annexure prepared in respect of clearance of Pashu Ahaar and clearance of Gutkha presumed to be cleared by M/s P J Aromatics which was transported through Railway. Further, there were proposal for appropriation of ₹ 1.25 crore paid by M/s P J Aromatics. There were proposals for imposition of penalty and recovery of interest from M/s P J Aromatics. Further, there was proposal to impose personal penalty under Rule 26 of Central Excise Rules, 2002 on Shri Praveen Kum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olony, Jeeveni Mnadi, Agra on 21.08.2007. 8. Shri Rajeev Chawla S/o Shri Jeet Prakash Chawla, 14, Govindpur, Kamla Nagar, Agra on 20.08.2007. 9. Shri Brahma Nand Gupta S/o Shri Jagdish Prasad on 20.08.2007. 10. Shri Bhagwan Das, S/o Shri Chedi Lal on 20.08.2007. 11. Shri S.S. Agarwal S/o late Shri D.D. Agarwal, 345/3, Balkeshwar Colony, Agra on 20.08.2007. 12. Shri Shekhar Gupta S/o Shri Gopal Lal Gupta, Katia Bazar, Hindon City, Karuli, Rajasthan on 29.06.2007. 13. Shri Vishnu Kant S/o Shri Mahes Chand, Geeta Nagar, Agra on 29.06.2007. 14. Shri Gopal Lal Gupta, Katla Bazar, Hindon City, Karuli, Rajasthan on 29.06.2007. 15. Shri Jawahar Aggarwal of M/s Laxmin Narain Jawahar Lal Agency, Hindon on 27.06.2007. 16. Shri Girdhari Lal Danwani of Akhil Sales Agency, Jaipur, Rajasthan on 27.06.2007. 17. Shri Uttam Chand Jain, Manager of M/s Bharat Freight Carrier, Agra on 27.06.2007. 18. Shri Birdi Chand Jain of Jain Transport Company, Karuli, Rajasthan on 27.06.2007. 19. Shri Niraj Goel S/o Shri Madan Gopal Goyal, Swai Madhopur, Rajasthan on 27.06.2007. 20. Shri Manoj Agarwal, Supervisor M/s P J Aromatics on 27.06.2007. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statements were taken under threat, duress, pressure or promise as claimed by the advocates of the noticee and that the evidenciary value of the statements was examined by him and it was found that they were corroborative and supportive of the case of the Revenue. He did not accept retractions by Shri Praveen Singhal and Shri Yogendra Kumar Singhal. Therefore, he relied on the statements recorded during investigation, and rejected the deposition before him during the Cross-examination. He ordered as reproduced herein below, I order to:- (i) Confiscate the 618 packets (33372 pouches) of Jeet brand Gutkha valued ₹ 8,343/-(Rs. Eight Thousand Three Hundred Forty Three only) under Rule 25 of the Central Excise Rules, 2002 seized at Unit No.1 of the Noticee No.1. As the goods have already been released to the Noticee No.1 vide provisional release order of dated 11.10.2006 after execution of B-11 Bond and furnishing cash security of ₹ 2,086/- (Rs.Two thousand eighty six only). I ordered to appropriate the cash security in lieu of redemption fine. (ii) confiscate the goods seized at Unit No.1 of the Noticee No.1 i.e. 31.6 Kg of Jeet brand lamination valued at ₹ 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OA/0207, Sita Ram Colony, Baleshwar Road, Agra GOdown premises of the Noticee No.1. As the goods have already been released to the Noticee No.1 vide provisional release order of dated 11.10.2006 after execution of B-11 Bond and furnishing cash security of ₹ 9,396/- (Rs.Nine Thousand Three Hundred Ninety Six Only), I order to appropriate cash security as redemption fine in lieu of confiscation the goods. (vii) confiscate the 2 bags of Jeet brand Gutkha valued ₹ 8,262/- (Rs. Eight Thousand Two Hundred Sixty Two only) seized at M/s Akhil Sales Agency, Jaipur dealer of the Noticee No.1 vaued at ₹ 8,262/- (Rs. Eight Thousand Two Hundred Sixty Two Only) under Rule 25 of the Central Excise Rules, 2002. However, I give an option to the Noticee No.1 to redeem the same, in lieu of confiscation, on payment of redemption fine of ₹ 2,065/- (Rs.Two Thousand Sixty Five only). (viii) confiscate the 18 bags of Jeet brand Gutkha goods seized at the premises of Gopal Lal Gupta, HIndon City dealer of the Noticee No.1 valued at ₹ 74,358/- (Rs. Seventy Four Thousand Three Hundred Fifty Eight Only) under Rule 25 of the Central Excise Rules, 2002. However, I give a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 13,06,19,045/- (Rs. Thirteen Crore Six Lac Nineteen Thousand Forty Five only) upon the Noticee No.1 under Section 11AC of the Central Excise Act, 1944 read with Rule 25 of the Central Excise Rules, 2002. (xiv) I order of recovery of interest from the Noticee No.1 under Section 11AB of the Central Excise Act, 1944. (xv) I impose a penalty of ₹ 50,00,000/- (Rs.Fifty lac) upon Shri Praveen Kumar Singhal (the noticee No.2) under Rule 26 of te Central Excise Rules, 2002 for contravention of the provisions of the Central Excise Act, 1944, and rules made thereunder. (xvi) I impose a penalty of ₹ 20,00,000/- (Rs.Twenty Lac) upon Shri Yogendra Kumar Singhal (the Noticee No.3) under Rule 26 of the Central Excise Rules, 2002 for contravention of the provisions of the Central Excise Act, 1944, and rules made thereunder . 7-A. Aggrieved by the said Order-in-Original dated 29.11.2007, the appellants are before this Tribunal. The grounds of Appeal are repetition of submissions before the Original Authority. 8. Heard the learned counsel for the appellants. He pleaded that the findings of the Ld. Commissioner that Cross-examination is not a part of nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... witnesses to say something which might suit to their case and that no witness came forward to lodge any complaint against the behavior of the Officers and further observed that he was of the view that there was no need to cross-examine them. He further observed that confessional statement given by the noticee and their acceptance of statements given by Raw material suppliers, their dealers situated at different places in Rajasthan and Railway booking agents were sufficient to adjudicate the case. The learned counsel argued that such an observation by Original Authority, is against the very process of adjudication and that if the reasons given by the noticee, as to why the proposal in the show cause notice should not be concluded, are not required then the process of adjudication becomes redundant. (d) Annexure-A to show cause notice was prepared by Revenue as claimed by them that the said annexure was based on billty books and challans resumed from M/s BFC however, such billty books and challans are not relied upon document for issue of show cause notice. Since the billty books and challans are not the case records, the Annexure-A does not have any strength of evidence to reliy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... information in respect of entire Gutkha booked at Agra Railway Station and that information does not indicate that said goods were manufactured by M/s P J Aromatics. The entire demand on the basis of information given by Railway Authorities that 40553 bags of Gutkha were clandestinely removed is not established. We hold that Revenue could not establish that on the basis of information given by Railway Authorities, M/s P J Aromatics manufactured 40553 bags of Gutkha and cleared the same without payment of duty. We find a great force in all the arguments put forth by the counsel for the appellants. We also find that Raw materials cannot be confiscated under Rule 25 of Central Excise Rules, 2002. We therefore, modify the impugned Order-in-Original by setting aside the confirmation of demand of ₹ 13,06,19,045/- and setting aside the penalty of ₹ 13,06,19,045/- and setting aside the order for recovery of interest on ₹ 13,06,19,045/- and setting aside the penalty of ₹ 50 lakh on Shri Praveen Kumar Singhal and setting aside penalty of ₹ 20 lakh on Shri Yogendra Kumar Singhal and setting aside the confiscation of 31.6kg and 1282.4kg of Jeet brand laminati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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