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TMI Blog2018 (3) TMI 1550X X X X Extracts X X X X X X X X Extracts X X X X ..... hat: - the seized FFS Machine and finished products (BCT) have been destroyed in the custody of the Department and thus the appellant had already suffered substantial loss - penalty upheld. Confiscation - redemption fine - penalty - Held that: - the confiscation of vehicle -Maruti Eco bearing Registration No.UP41 N0892, is upheld but in the interest of justice the redemption fine is reduced to ₹ 15,000/- - penalty imposed on Shri Mohammad Faheem under Rule 26 of the Central Excise Rules, 2002, is also reduced to ₹ 5,000/-. Appeal allowed in part. - E/52126/2015-EX[SM] - A/70551/2018 - Dated:- 13-3-2018 - Mr. Anil Choudhary, Member (Judicial) Shri Dushyant Kumar, Consultant - for Appellant Shri Pawan Kumar Singh, Superintendent Shri Gyanendra Kumar Tripathi, Assistant Commissioner (AR) - for Respondent ORDER Per: Anil Choudhary The appellant M/s Eagle Tobacco co. is the proprietorship concern of Shri Mohammad Nadeem. On the basis of some specific information on 01/07/2011, the Officers of Central Excise (Preventive) Branch reached the registered (with Excise Department) factory premises. Shri Mohammad Nadeem was present at the spo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ohammad Nadeem from a Shopkeeper located in Kanpur. Shri Mohammad Nadeem was unable to produce any purchase bill in respect of the said packing machine at the time of search. He, further, stated that he used to purchase raw tobacco from M/s Faheem Tobacco Company, as and when required and carried the bags containing pouches of packed tobacco to the nearby market through his brother's vehicle - Maruti Eco bearing Registration No.UP41 N0892 for selling. It appeared to Revenue that excisable goods were being manufactured by the appellant in the unregistered premises in contravention of relevant Rules being Chewing Tobacco Unmanufactured Tobacco Packing Machines (Capacity Determination Collection of Duty) Rules, 2010. The Officers seized the only FFS Machine valued at ₹ 25,000/-, two printed packing rolls valued at ₹ 6,000/-, 10,000 pouches (packed in 05 bags) and 200 pouches in loose condition totally valued in aggregate amount of ₹ 20,400/- @ ₹ 2/- per pouch. A Panchnarna dated 01/07/2011 was drawn on the spot, recording the entire proceedings of search and seizure of the aforesaid goods and materials. The Officers also found Maruti Eco bearing Regis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al evidence was found by the Officers during the course of search of the unregistered premises of Shri Mohammad Nadeem and also noticed during the investigation, all of them clearly establish the fraudulent and mischievous conduct on the part of the appellant with an intent to evade payment of Central Excise duty on manufacture and packing of branded Unmanufactured Tobacco by using FFS Machine. Thereby, contravening various provisions of the Act and the Rules read with Chewing Tobacco Unmanufactured Tobacco Packing Machines (Capacity Determination Collection of Duty) Rules, 2010. 3. Accordingly, it further appeared to Revenue that the appellant was liable to pay Central Excise duty of ₹ 41 lakhs (Rs.10.25 lakhs x 4 months) as per Rule 9 18 of the Chewing Tobacco Unmanufactured Tobacco Packing Machines (Capacity Determination Collection of Duty) Rules, 2010. It also appeared to Revenue that the goods seized under two Panchnamas both dated 01/07/2011 were liable to confiscation under Rule 25 of the Central Excise Rules, 2002. The vehicle seized - Maruti Eco bearing Registration No.UP41 N0892 belonging to Shri Mohammad Faheem, also appeared to be liable to confiscat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that the appellant had shifted his manufacturing activity sometime after 31/05/2011 i.e. after the present premises was taken on rent from its owner Shri Mohammad Suleman. It is also corroborated by the statement of the land owner as well as by the certificate of the Gram Pradhan. Further the appellant produced purchase receipt No.299 dated 28/06/2011 by way of documentary proof to corroborate that the FFS Machine in question was purchased on 28/06/2011 from M/s Beni Engineering Works, Kanpur. Thereafter, the said machine was brought to the premises and installed and was being run on trial basis for only two days prior to the date of search i.e. 01/07/2011. Thus, the demand raised and confirmed for a period of four months is without any basis and fit to be set aside. 6. So far as the non-acceptance of the said purchase receipt No.299 dated 28/06/2011, on the basis that the proprietor of M/s Beni Engineering Works, Kanpur, has denied the issue of the said bill, the same is erroneous. As Shri Beni Prashad Sharma - Proprietor of the said firm had accepted in his statement that the Bill in question pertains to his firm and two copies of the same Bill No.299 had been detached from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On 01/07/2011, he had stated that since last 3-4 months, he was manufacturing the tobacco in pouches, bearing his brand name and registration number, by using the pouch packing machine at the said unregistered premises. It was only in his second statement dated 15/07/2011, appellant had averred that the FFS Machine was purchased from M/s Beni Engineering Works, Kanpur, vide purchase receipt bill No.299 dated 28/06/2011 and had also produced the photocopy of the purchase bill. The learned Counsel also urges that the appellant is practically an illiterate person and can only sign in Urdu. Further the appellant has also stated that at the time of search, he was so perplexed that had practically signed on the dictated statement, as he had been threatened of arrest. So far as manufacturing and packing of branded tobacco for the last 34 months is concerned, the appellant was manufacturing and packing by hand and by using simple sealing machine and not using an FFS Machine. In view of the documentary evidence of receipt of purchase of the machine not found/untrue the confirmation of demand on presumptions and assumptions is bad and fit to be set aside. It is also evident from the record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... started manufacturing on the FFS machine from 29/06/2011, on trial basis. It is also urged that a higher demand cannot be fastened on the appellant only for the reason of procedural lapses on his part. Further in absence of regular electric connection and/or there being no electric connection in the premises whereby the FPS machine was found installed, it is evident that the appellant was only doing trial production and had not commenced commercial production. 12. The Id. Counsel also urges that there is failure on the part of the Adjudicating Authority in exercising the jurisdiction vested in him as he failed to ensure the attendance of Shri Beni Prasad Sharma - Proprietor of M/s Beni Engineering Works, Kanpur, for the purpose of recording his statement and also giving opportunity to the appellant for cross-examination. Just issuance of summons is not sufficient when all the powers of a Civil Court are vested in the Adjudicating Authority to ensure attendance of witnesses. The Id. Counsel further states, in the facts and circumstances, no penalty is also imposable on the appellant. 13. The learned A. R. for Revenue - Shri P. K. Singh - Superintendent Shri Gyanendra Kumar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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