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TMI Blog2018 (6) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 4,90,19731/- was confirmed in the present proceedings - In the absence of any such investigation it cannot be conclusively proved that the goods on which central excise duty of ₹ 4,90,19,731 was demanded were not the goods on which duty of ₹ 5,24,99513/- was paid during the period from May 2006 to December 2007. Appeal allowed - decided in favor of appellant. - E/2261, 2080-2087, 2222, 2223, 2313/2012 - A/70852-70863/2018-EX[DB] - Dated:- 8-3-2018 - SHRI ANIL CHOUDHARY, (JUDICIAL) And SHRI ANIL G. SHAKKARWAR, MEMBER(TECHNICAL) Shri Bipin Garg (Advocate) Shri Vaibhav Dixit (Advocate) in Appeal No.E/2080, 2081, 2083-2087/2012 Shri Gyanendra Kumar Tripathi (AC) (A.R.) for the Revenue Per ANIL G. SHAKKARWAR: The above stated 12 appeals are arising out of impugned order-in-original No. 02/Commr./LKO/CX/2012-13 dated 20.4.2012 passed by the Commissioner of Central Excise Service Tax, Lucknow. Therefore they are takne together for decision. Out of the 12 appeals, appeal No.E/2087/2012 is preferred by Revenue and remaining appeals are preferred by manufacturer Durga Trading Co. and other co-noticees. 2. Brief facts of the case are that M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch was found in possession of above stated two persons were obtained from mobile service provides and on the basis of such investigation a show cause notice was issued on 30.9.2010. It was alleged in para 50 of the said show cause notice that DTC had clandestinely cleared 145632000 pouches of Pukar gutkha valued at ₹ 14,56,32,000/- during the period from May 2006 to December 2006 and evaded payment of central excise duty of ₹ 4,90,19731/-. It was further allege that said number of pouches of Pukar gutkha were manufactured and cleared by DTC without payment of Central Excise Duty by mis-declaring the same as kati supari, mithi supari, saunf, pili patti etc. Therefore through said show cause notice it was proposed as follows. The proposal in the show cause notice contained in para 54-55 are reproduce below:- 54. Now, therefore, M/s.Durga Trading Company, Krishna Colony, Khurshid Bagh, Lucknow are hereby required to show cause to the Commissioner, central excise, Lucknow having his office at 7-A, Ashok Marg, Lucknow-226001, within 30 days of the date of the receipt by them of this notice, as to why: (a) Central Exicse duty amounting to ₹ 4,90,19,731/- (Rs.F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should not be imposed on them individually and severally under Rule 26 of the Central Excise Rules, 2002 on the grounds and evidences discussed in the preceding paragraphs. On contest the above show cause notice was adjudicated through impugned order-in-original. 3. DTC submitted their written defence through letters dated 6.8.2011, 5.9.2011, 11.10.2011, 12.10.2011 and 19.10.2011 before the original authority as recorded in the impugned order-in-original. DTC denied the allegation of clandestinely removal and pleaded that their sales were made at the factory gate. They also stated that in the search conducted on 28.2.2007 at M/s.Laxmi Agencies, nothing incriminatory was recovered to even make out a prime facie case and mere recovery of Pukar brand gutkha may not be an evidence of clearance of gutkha without payment of duty by DTC. They further stated that it was recorded in presence of witnesses that said goods were purchased without cover of any invoice and that it has come out from statement of Shri Rajendra Yadav that he was looking after the affairs of M/s.Laxmi Agencies. The DTC also contended that statements of shri Sushant Kamlakar Saha and Shri Rajesh Shettiar reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thirty one only) on Shri Udai Chand Chaurasia, proprietor of M/s Udai Traders under Rule 26 of the Central Excise Rules, 2002. 5. I impose a penalty of ₹ 4,90,19,731/- (Four crores ninety lakhs nineteen thousands seven hundreds thirty one only) on Shri Rajendra Daji Jadav of M/s Laxmi Agency under Rule 26 of the Central Excise Rules. 6. I impose a penalty of ₹ 4,90,19,731/- (Four crores ninety lakhs nineteen thousands seven hundreds thirty one only) each on Shri Alim Ali Shri Ashish Shrivastava the authorized signatories of M/s Durga trading Co. Lucknow under Rule 26 of Central Excise Rules, 2002. 7. I impose a penalty of ₹ 50,00000/- (Rupees fifty lakhs only) each on Shri Hari Mohan Tripathi and Shri Naval Kishore Pandey the accountants of M/s Udai Traders Lucknow under Rule 26 of Central Excise Rules, 2002. 8. I impose a penalty of ₹ 50,00,000/- (Rupees fifty lakhs only) on Shri Shekhar Sanap, Marketing Supervisor of M/s Laxmi Agency under Rule 26 of Central Excise Rules 2002. 9. I impose a penalty of ₹ 50,00,000/- (Rupees fifty lakhs only) on Shri Sushant Kamalakar Saha, Tempo Service provider under rule 26 of Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T) 7) Ritvi Steel Alloys v. CCE Reported at 2009 (243) ELT 154 (T) 5. He further submitted that during the period from May 2006 to December 2006 DTC has paid central excise duty of ₹ 5,24,99,513/- and the demand for the same period in the said show cause notice dated 30.9.2010 was for ₹ 4,90,19,731/-. He also submitted month wise duty payment particulars for each month from the month of April 0206 to December 2006 and interim order No.1/2018 dated 12.1.2018 was passed through which revenue was requested to confirm duty payment particulars paid by DTC on Pukar brand gutkha for each months for the months of April 2006 to December 2006. Revenue through their letter C.No.V-78/R/CESTAT/LKO/2018 dated 8.3.2018 confirmed that the duty particulars stated in the said interim order were paid by DTC as verified from ACES. 6. He has further contended that during the period involved in the present show cause notice DTC paid central excise duty of ₹ 5,24,99513/- and demand of central excise duty in the present proceedings is ₹ 4,90,19731/-. He has further submitted that in the entire proceedings it was not established that the goods on which duty of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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