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TMI Blog2016 (12) TMI 1635X X X X Extracts X X X X X X X X Extracts X X X X ..... e adverse conclusions drawn by the Additional Commissioner have been rightly held to be unsustainable by the ld. Commissioner (Appeals) - appeal dismissed - decided against Revenue. - E/1434 & 1435/2008-EX[SM] - A/71122-71123/2017-SM[BR] - Dated:- 4-9-2017 - Mr. Anil Choudhary, Member (Judicial) Shri Pawan Kumar Singh, Superintendent (AR), for Appellants Absent, for Respondent ORDER Per: Anil Choudhary The Revenue is in appeal against Order-in-Appeal No.151-152-CE/APPLKNP//2008 dated 31/03/2008 passed by Commissioner of Central Excise Customs (Appeals), Kanpur, wherein at the time of inspection of the finished products/physical verification of stocks shortage of 5955 Kgs. in stock of Polyester Film (input) and excess of 6378 Kgs. and 4229 Kgs. was noticed in the stock of other inputs namely Metalized Polyfilm Co-extruded Poly Film respectively. Further, an excess of 8217.980 Kgs. was noticed in the stock of finished products namely Printed Plastic Article Flexible Printed Laminated Rolls. The learned Commissioner (Appeals) held that in the facts and circumstances, confiscation of seized goods is not proper as the goods were still lying in the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... --do-- Swad Gutkha 329.400 Rs.45,457.20 03 --do-- Shyam Bahar Gutkha 277.100 Rs.38,239.80 04 --do-- PM BP Seeds 139.300 Rs.19,223.40 05 --do-- Gagan Gutkha 489.550 Rs.67,557.90 06 --do-- Bhatia Gutkha 66.050 Rs.9,114.90 07 --do-- Chetak Washing Powder 34.440 Rs.4,747.20 08 --do-- Mysore Gutkha 37.050 Rs.5,112.90 09 --do-- Kumar Gutkha 34.150 Rs.4,712.70 10 Flexible Lamination Rolls Shyam Bahar Gutkha 537.750 Rs.74,209.50 11 --do-- Sw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fiscated goods on payment of redemption fine of ₹ 11 lakhs and penalty of ₹ 1,08,872 under Rule 25 ₹ 1 lakh under Rule 26 was imposed on Shri A. N. Tripathi respectively. Being aggrieved, the respondent had preferred appeal before Commissioner (Appeals), Kanpur, who vide OIA dated 19/10/2006 was pleased to set aside the OIO without going into the details of the case and only after considering the legality of the Panch witness and observed that making the outstation persons accompanying the officers create doubt about the genuineness of witnesses and the natural Justice is not extended to the appellants. Accordingly, Commissioner (Appeals) was pleased to remand the matter back to the Adjudicating Authority to decide the issue afresh after allowing cross-examination of Panch and granting personal hearing. Thereafter, the second OIO dated 21/03/2007 was passed by the Additional Commissioner, Kanpur, wherein the seized goods were confiscated with option to redeem on payment of fine ₹ 11 lakhs and further penalty were confirmed as in past. Again being aggrieved, the respondent preferred appeal before Commissioner (Appeals), Kanpur, who vide OIA dated 24th July, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s was illegal and thus confiscation was not justified. It was also stated that it is settled law that the entire burden of proving its case lies on the Revenue, who is bound to produce cogent and tangible evidence in support of its case. The Department relied upon the Panchnama dated 20/10/2003 which is highly questionable document and the case is not proved beyond doubt. Further, the Adjudicating Authority have violated the Principles of Natural Justice and has failed to give effect to the orders of the Commissioner (Appeals), wherein the learned Commissioner (Appeals) had remanded the matter with the clear direction to extend opportunity of cross-examination of the Panch witnesses, which was not complied by the Adjudicating Authority. Reliance was placed on Section 18 of the Central Excise Act, 1944 which makes specific provisions with regard to the searches made under the Act, which has to be carried out in accordance with the Criminal Procedure Code, 1998. 6. The ld. Commissioner (Appeals) have observed that it is well settled law by the Larger Bench of this Tribunal in the case of Bhillai Conductors Pvt. Ltd, reported at 2000 (125) E.L.T. 781 (3 Member Bench) wherein he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. Being aggrieved the Revenue is in appeal on the grounds among others that according to Rule 25(1)(b) of Central Excise Rules, 2002, which makes it very clear that even if an assessee does not account for any excisable goods produced or manufactured or stored by him, even without any intention to clear the same clandestinely, the goods in question will be liable to confiscation. Thus, the excess raw material and finished goods found in the factory of the respondents was liable to confiscation and the ld. Commissioner (Appeals) have erred in setting aside the confiscation. The next ground of contention is that the ld. Commissioner (Appeals) have erred in holding the punch witness as bad and illegal. Under the fact that there is no evidence at all that the punch witnesses were accompanying the Department officials right from the time they entered the promises of the appellants and that they were not independent and disinterested witnesses. The punch witnesses were as per records, called later on. Even, if they were not called from the locality. When seizure took place, they could be very well called from another locality as per the Cr.P.C. provisions, 1998. 8. The respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X
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