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TMI Blog2017 (11) TMI 978X X X X Extracts X X X X X X X X Extracts X X X X ..... peal dismissed - decided against appellant-Revenue. - E/Cross/55669-55671, 56207, 55672-55674/2014, E/54027-54033/2014-EX[SM] - A/71338-71344/2017-SM[BR] - Dated:- 21-7-2017 - Mr. Anil Choudhary, Member ( Judicial ) Shri Sandeep Kumar Singh ( Dy. Commissioner ) AR for Appellant Shri Prbhat Kumar ( Advocate ) for Respondent ORDER Per: Anil Choudhary The Revenue is in appeal against common Order-in-Appeal No. 12 18/CE/ALLD/2014 dated 30 January, 2014. Wherein the learned Commissioner (Appeals) have held that the demand raised jointly and severally is not tenable and is in the teeth of the ruling of this Tribunal in ENAR Cements Private Ltd v/s CCE - 2013 (292) ELT 245 and have also been pleased to hold that the actual manufacturer in the instant case are M/s Indian Chemicals, Naini and M/s Rahat Industries, Naini therefore, Central Excise Duty if evaded, it should have been demanded from them instead of the respondents herein who are partners in these firms. These firms were separately registered under the Central Excise, having four partners in common in each and paying Central Excise Duty separately. The goods manufactured by them were also differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the illicit sale of Noorani Tel clandestinely manufactured at 34, Chaitham Lines, Allahabad and other products manufactured and removed clandestinely, without payment of duty, by M/s Rahat Industries valued at ₹ 11,46,497.83/- during the period 12.10.1994 to 13.02.1997 as per the secret accounts (ledger folios). Penalty was also proposed against the said persons in their individual capacity as well as in their capacity as partners in M/s Rahat Industries and M/s Indian Chemical Co., under relevant rules and interest was also proposed to be realized. 2.3. The two SCN s were adjudicated vide OIO dated 30.03.2013 passed by Joint Commissioner, C.Ex., Allahabad whereby- (i) Noorani Tel valued at ₹ 5,41,319/- involving central excise duty of ₹ 43,321.52/- was confiscated with option given to Mohmd. Azmal Noorani, Smt. Rashida Parveen and their sons Mohd. Ahsan, Mohd. Arshad, Shadab Jamal and Asad Jamal to redeem the same on redemption fine of ₹ 50000/- and a combined penalty of ₹ 43,521.52/- was also imposed upon them. (ii) The cartons of Himlok Tel, Rahat Lal Tel, Janamghutti, Nurament ointment and Nurament Oil seized on 20.11.1997 valued at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der: (f) manufacturer includes any process (i) incidental or ancillary to the completion of a manufactured product, and (ii) which is specified in relation to any goods in the Section or Chapter notes of the Schedule to CETA as amounting to manufacture and the words manufacturer shall be construed accordingly, and shall include not only a person who employs, hired labour in the production or manufacture of excisable goods, but also any person who engages in the production or manufacture on his own account. 4. It is an admitted fact on record that the goods namely Noorani Tel, Himlok Tel, Rahat Tel etc. were being manufactured under the supervision of the respondents at the premises at 34, Chaitham Lines, Allahabad (residential premises of the respondents). Therefore, the said persons were clearly the actual manufacturers of the goods as per Section 2(f) of the Act. There is no evidence on record to indicate that the aforementioned goods which have been manufactured at the residential premises of the respondents, where so manufactured as per directions of Rahat Industries or Indian Chemical Industries and thereafter being clandestinely removed. The common resident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hree times of the value of such goods or ₹ 5000/-, whichever is greater. In the facts of the present case, respondents were involved in illicit manufacture of the goods in the unregistered premises in the capacity of association of persons. However, they were also involved in their individual capacities in various works related to clandestine removal of these goods. Thus, in addition to being held as a person in a combined form and being penalised combinedly, they are also liable to suffer punishment of penalty in their individual capacities for the contravention of the law. 7. It has also alleged that on the date of search on 20 November, 1997 in the common residential of premises of the respondents who were also the partners of Indian Chemical Industries and Rahat Industries, situated at 34 Chaitham Lines, Allahabad, it was found that Noorani Tel the brand owned by Indian Chemical Industry was being illicitly manufactured and also products manufactured by Rahat Industries were found illegally stored in the said registered promises. During the search of the premises some computer floppy and documents were recovered containing details of illicit manufacture and clandestine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of seized Noorani Tel, Himlok Tel etc. was allowed in favour of Rahat Industries. The learned counsel have further pointed out that so far the demand relating to or based on the floppy disk recovered from the premises, there is no ground by the Revenue in their appeal. The learned counsel also urges that it have been held by Hon'ble Allahabad High Court in the case of Continental Cement Company v/s Union of India, 2014 309 ELT 411 wherein on the issue of proof in respect of clandestine removal it have been held clinching evidence is required of purchase of raw material, use of extra electricity, sale of final products, clandestine removal, transportation, payment, realization of sale proceeds, mode and flow back of funds, etc. Demand cannot be confirmed based on presumptions and assumptions as it is a serious charge and the same is required to be proved by Revenue by tangible and sufficient evidence. Further held that mere statements of buyers, based on their memories, was insufficient without support of any documentary evidence. Accordingly, the learned counsel prays for dismissing the appeal filed by Revenue. 10. The learned counsel further urged that as Indian Chemic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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