9911796707
TMI Blog2017 (7) TMI 759X X X X Extracts X X X X X X X X Extracts X X X X ..... 7/- calculated based on evidences recorded during investigation is sustainable against the main appellant. Penalty equivalent to such amount in terms of Section 11AC is also sustainable. Confiscation of 49 bags of pan masala found in the factory premises of the main appellant - confiscation on the ground that the same are not duly accounted for and were intended for clandestine manufacture later - Held that: - the original authority held that the duty paid clearance of such goods earlier could not be linked with the seized goods and accordingly, he held that these were non-duty paid items. When the products was stated to be damaged items, the question of their marketability as excisable goods has to be examined. The same has not been done by the original authority. He made a summary conclusion that the duty paid nature of the said product has not been established. We note that if the product is not fit for market, the duty paid nature or otherwise of the same is of no relevance. Accordingly, we hold that the confiscation ordered on the above two items is not legally sustainable. Penalty u/r 26 of CER, 2002 - Held that: - the case for non-duty paid clearance, the main appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the some extra clearance occurred from 2003 onwards. 3.2 The second issue is un-accounted manufacture of clearance of 3.82 lakhs pouches of pan masala without accounting. The duty demand of ₹ 85,30,358/- was on this count. The ld.Counsel submitted that the only evidence, which is relied upon by the original authority is certain loose sheets recovered from the premises of Shri P.Someswar. The Original Authority held that the hand written private records were co-related with the computer print-out and are sufficient evidence of un-accounted manufacture of excisable goods by the main appellant. The ld.Counsel strongly contested the allegation on the ground that neither any author of private records were identified nor linked to the main appellant s manufacturing activity has been established with any corroborative evidence. The private records indicate the stock of packing materials for various brands of pan masala. In fact, there were many brand names indicated in the loose sheets of private records, which cannot be linked to the main appellant as they are not manufacturing such brands. No evidence was brought out by the Revenue regarding source of purchase or movement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the unaccounted pouches cleared is sustainable for a full five years period. Regarding private records for packing materials, the ld.A.R. submitted that these records were recovered from the residence of Shri Someswar, who acted as a job worker for main appellant. During enquiry, he also admitted that these accounts could be for packing materials for manufacture of pan masala by the main appellant. These private records were tallying with the computer print-out available with Shri Someswar. The original authority concluded based on these evidences. The ld.A.R. for the Revenue also submitted that there is no merit in the present appeals. 5. We have heard both sides and perused the appeal records. The substantial question in the present appeal is with reference to the allegation of clandestine manufacture and clearance of pan masala involving duty liability of ₹ 85,30,358/-. The demand for this duty was sought to be sustained based on certain loose sheets of papers recovered from the residence of Shri P. Someswar, reported to be job workers of the main appellant. The said loose sheets of papers contained quantities of packing materials of various brands of pan masala. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icate of Chartered Engineer submitted in support of such claim was brushed aside by the original authority without any explanation. 7. On careful perusal of all the available records, we note that the whole case of clandestine manufacture and clearance based on certain private records and recovered from the premises of third party, cannot be sustained in absence of any cogent corroborative supporting evidences. 8. Regarding the excess clearances of dutiable pan masala over and above the declared quantities, we find that the said fact has been admitted not only the main appellant, but also by various dealers, who dealt with the said items. The only dispute is whether the demand for such excess clearance can be made from September, 2000 or is to be restricted from 2003 only, as claimed by the appellant. We note that the admitted facts corroborated by the dealers indicated to the evidence of un-accounted clearance of excess amount of pan masala pouches over and above recorded quantity. In such situation, it is for the main appellant to establish with supporting evidence to the effect that since when such practice was in vogue. It appears that in case of admitted fact corroborate ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
