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TMI Blog2017 (5) TMI 231X X X X Extracts X X X X X X X X Extracts X X X X ..... factory of M/s Kashi Laminators (P) Ltd., Sitapur Road, Lucknow and some other premises, including the residential premises of 11 persons were searched on 18th March, 2004 by the Officers of Central Excise Intelligence. At the factory premises of M/s Kashi Laminators (P) Ltd., Sitapur Road, Lucknow, the stock of laminated/pouch rolls bearing brand name Pukar was found to be weighing excess by quantity of 3084.34 Kg. against the recorded stock of laminate valued at Rs. 5,08,916/- Further the stock of raw material was found in excess of recorded balance to the extent i.e. excess quantities of 1800 Kgs. of LDPE valued at Rs. 36,000/-, 1025 Kgs. of LLDPE Valued at Rs. 50,200/- & 50 Kgs. of HDPE valued at Rs. 2,400/-, & 14 rolls (weighing) 1,829.20 of Polyfilm valued at Rs. 1,28,044/-. Further Rs. 2 lacs cash was available in their office which was over and above the cash in hand as reflected in their book of account. The residential premises of Shri Bhupesh Bansal, Proprietor of M/s Kashi Laminators (P) Ltd. was also searched on the same date which resulted into recovery of 202 loose slips, slip pad & Rs. 54.5 lacs. These slips contained the details of sale of finished goods by M/s Ka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of supply of 18602.35 kg of Laminated Plastic Rolls for making Pukar brand Gutkha pouches was found from M/s Kashi Laminators Pvt. Ltd. from the period from 01/03/2004 to 13/03/2004 is based on some slips recovered from the residential premises of M/s Lal Chand Agarwal, father of Shri Bhupesh Bansal, Mangaging Director of M/s Kashi Laminators Pvt. Ltd. These slips are containing date-wise details of dispatch of pouch rolls of M/s Durga Trading Company and each of these slips bears the name - "Sanjay Kumar, LKO". Shri Bhupesh Bansal in his statement dated 12/07/2004 has clarified that "Sanjay Kumar, LKO" in the code for M/s DTC and all the slips on which the words "Sanjay Kumar, LKO" figure appears to pertain to M/s DTC Para 4.9 of the Show Cause Notice also, while explaining the contents of these slips, mentions "Sanjay Kumar, LKO" as a code name allotted for the party to whom the lamination is to be sent. Thus, "Sanjay Kumar, LKO" does not appear to be a person. Therefore, the Commissioner, in para 2 e) of the impugned order has strangely observed that "Sanjay Kumar, LKO" whose name figures in the slips for M/s DTC is no doubt a crucial witness whose presence would have authen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the books and some not and was asked to submit in detail. He submitted that one person who introduced himself as Shri Sanjay Kumar used to visit their factory alongwith printing cylinders and the laminators film etc. by using the said Cylinder Laminated Films were manufactured and handed over to Shri Sanjay Kumar. The said film bears design and name of 'Pukar'. (ii) On being asked to explain the identity and address of the said Shri Sanjay Kumar, Shri Bhupesh Bansal submitted that the said Sanjay had introduced himself as the owner of one M/s Durga Trading Company of Nepal and after getting the laminated film manufactured out of his material and cylinder, he used to take the cylinder and the laminated film back. (iii) On being asked whether the said laminated film was dispatched by him for the destination he submitted that 'No, the said material was carried on by the said Shri Sanjay Kumar himself.' (iv) On being asked how the payments by the said as Shri Sanjay Kumar was made to him he stated that the payments were always made by the said Shri Sanjay Kumar in cash. (v) He was shown the reply of Question No. 23 & 24 in his statement dated 12/07/2004 where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Durga Trading Company, Lucknow, the Noticee. (iii) Further countering the Chart-II prepared by DGCEI showing comparison of buyers copy of cash/credit memo of M/s Udai Traders, the Noticee submits that at the outset the said documents pertain to a trading firm M/s Udai Traders and dealing of which is principal to principal basis and even for the sake of arguments if the comparison Is taken to be correct then perusal of the documents shows that out of thousands of entries only 13 are not tallying with the description, which might be the result of some inadvertent clerical omission but the same does not support the Revenue for creating a snowballing liability, which has to be proved with unimpeachable evidences, which the DGCEI does not have. Even using the said chart as link evidence, the said Chart-II does not hold any ground for use as evidence. 6. The Original Authority has confirmed the demand of Rs. 9,18,613/- and imposed equal penalty. Further, the Original Authority confiscated the finished goods and raw materials and also confiscated Rs. 2 lakh cash. The Original Authority imposed penalty of Rs. 10 lakh on Shri Bhupesh Bansal and held that no penalty was imposed on Shri L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that the order for confirmation of demand is based on the loose slips which are not authenticated and the evidence relied upon by the Original Authority is not sustainable in view of the observations of this Tribunal in the order through which the matter was remanded to the Original Authority. He further contended that the finished goods were within the premises of factory and they did not reach the stage of clearance therefore there was no question of evasion of duty on the same and that the goods on which duty is not evaded are not liable for confiscation. He, further, contended that there are no provisions in the Central Excise Act to confiscate raw materials. He, further, contended that since finished goods were not liable to confiscation there is no question of imposing penalty on Shri Bhupesh Bansal & Shri Lal Chand Agarwal under Rule 26 of Central Excise Rules, 2002. 13. Heard the learned D. R. for Revenue, who has presented the grounds of appeal for appeal filed by Revenue against M/s Kashi Laminators Pvt. Ltd., Shri Bhupesh Bansal & Shri Lal Chand Agarwal. 14. Having considered the rival contentions and on perusal of the records, we find that the Cross Examination o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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