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TMI Blog2017 (1) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... ’ble Allahabad High Court will be applicable here. In the absence of any suitable evidence, we find that the demand of excise duty cannot be sustained - Appeal allowed. - E/1986,2010,2037,2038,2039/2010 - 55966-55970/2016 - Dated:- 21-12-2016 - Dr. Satish Chandra, President And Mr. V. Padmanabhan, Member (Technical) Shri S.P. Mathew, Ajay Singh, Advocate for the Applicants Shri R.K. Manjhi, DR for the Respondent ORDER Per V. Padmanabhan These appeals have been filed against the Order-In-Original dated 26.02.2010, passed by the Commissioner Central Excise, Delhi. Appellant, M/s Sunrise Food Product, Narela is a division of M/s Shree Raj Exports Pvt. Ltd. and were manufacturing Gutkha with brand name Bombay 1000 in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - (i) Being Panchanamas drawn at various premises ( Annexure- A), (ii) Statements recorded under Section 14 of the Act (Annexure-B) and (iii) A few documents including computation of Duty demand (Annexure C). 4. After taking a detailed reply and granting hearing to the Appellants, the Commissioner C. Excise, Delhi, confirmed the entire duty demand vide O-I-O dated 26.02.2010. Mandatory penalty was imposed on Appellants while penalties on other Noticees were imposed under Rule 26 of the CER, 2002. The duty has been confirmed on the ground that the appellants were found to have clandestinely removed goods without payment of duty. This has been challenged in these appeals. 5. The present appeals have been filed by M/s Sun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty thereon. 7. The other relevant evidence is in the form of print outs taken from the CD seized from the residence of Shri Rajesh Bhatia. It has been alleged by the department that the CD contains details of Gutkha cleared from the appellant s factory clandestinely. 8. With the above background, we have heard Shri S.P. Methew, Ld. Advocate appearing on behalf of the appellants. We have also heard Shri R.K. Manjhi, Ld. Departmental Representative for the Revenue. 9. The main arguments of the appellants are summarized below: a) Though certain quantity of Gutkha was seized during investigation about which detailed questions were asked to the witnesses and these were elaborately emphasized in support of the findings in the impu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Raj Pan Masala Pvt. Ltd, Jodhpur. Scrutiny of records reveals that clearance of Gutkha on payment of duty is always dispatched by road and clandestinely cleared Gutkha was dispatched through Railway. Since the units had Narela, as well as Jodhpur operated during different periods of time, it can be easily presumed that seized Gutkha consignment bearing the name of M/s Sunrise has been manufactured either from the Narela Unit or from the Jodhpur unit depending upon whether the consignment is prior to April 2007 or subsequent to this date. ii) Scrutiny of documents and the computer print outs reveal the details of date of Clearances, dispatch quantity, value, destination etc. Further, he pointed out that consignments sent by rail did n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven shown to Shri Lalit Joshi and his response obtained. However, we find that he has not admitted specifically that the goods have been manufactured from the Appellants factory in Narela. Since, Shri Lalit Joshi has talked about Narela as well as Jodhpur units his statement does not bind the Railway Receipts to Narela Unit. 12. Consignments of Gutkha were seized by Revenue in various parts of Kerala. However, the Ld. Commissioners finding is that the Gutkha seized were manufactured by M/s Shree Raj Pan Masala Pvt Ltd, Jodhpur for which a separate proceeding stand initiated. Consequently, the seizures do not further the case of Revenue. 13. CD containing data was seized from the premises of Shri Rajesh Bhatia. Though these contain the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation has been undertaken to probe further who was the actual consignor whose name is indicated in the Railway Receipts. The ultimate recipients of the alleged clandestinely cleared Gutkha have also not been investigated. 15. Demand for such huge amount of Excise duty cannot be sustained without tangible evidence. It has been held by the Apex court time and again that demand for tax cannot be sustained on the basis of incomplete investigation. Further, the Hon ble Allahabad High Court has also held in the case of Continental Cement Company Vs. Union of India 2014 (309) E.L.T. 411 (All.) that clinching evidence is required of purchase of raw material, use of extra electricity, sale of final products, clandestine removal trans ..... X X X X Extracts X X X X X X X X Extracts X X X X
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