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TMI Blog2018 (6) TMI 1341X X X X Extracts X X X X X X X X Extracts X X X X ..... A/70883/2018-EX[DB] - Dated:- 5-4-2018 - Mr. Anil Choudhary, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Shri Anurag Mishra, Advocate for Appellant Shri Rajeev Ranjan, Joint Commissioner (AR), for Respondent Per: Anil G. Shakkarwar The present appeal is arising out of Order-in-Original No. 69/Commr./LKO/CX/2009 dated 30/11/2009 passed by Commissioner of Central Excise Service Tax, Lucknow. 2. The brief facts of the case are that the appellants were manufacturer of Gutkha falling under Tariff Item No.24039920 of First Schedule to the Central Excise Tariff Act, 1985. The goods manufactured by the appellant were bearing brand name Shyam Bahar . Officers of Revenue conducted searches during Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow who were used to grind and roast supari for appellants, Shri S.P. Pandey, Booking Cleark of M/s Northern Railway City Booking Agency and Shri Mukesh Kumar who was the consignee of many consignments. From the City Railway Station, Lucknow and M/s Northern Railway City Booking Agency, Lucknow copies of railway booking receipts were recovered and collected. On the basis of evidences so collected a show cause notice dated 23.05.2008 was issued in respect of goods involved in documents received from City Railway Station, Lucknow and M/s Northern Railway City Booking Agency, Lucknow wherein it was alleged that 128358000 pouches of Gutkha booked through Railway booking at City Railway Station, Lucknow and 5094000 pouches of Gutkha booked from M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whenever the Gutkha was booked by Shri Jaganath then it must be Gutkha clandestinely removed from the factory of the appellant. He further submitted that there was no evidence in the show cause notice nor in the Order-in-Original to support of the said presumption. He has further submitted that the statement of Shri S.P. Pandey was relied upon by the Original Authority for confirmation of demand. Cross examination of Shri S.P. Pandey was not allowed. Therefore, deposition by Shri S.P. Pandey during the course of investigation was not evidence to rely upon for confirmation of demand. He further submitted that cross examination of Shri Rajesh Verma, trolley puller could not be held since he did not turn up. Since the correctness of deposition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue could not establish manufacture and clandestine removal of alleged quantity of Gutkha during the entire proceedings of this case. Therefore, relying on the decision of this Tribunal in the case of M/s Som Aromatics and others, he prays that the impugned Order-in-Original is liable to be set aside. 4. Heard the learned A.R. for Revenue who has relied on para-39 of the impugned Order-in-Original, which is reproduced bellow:- The demand of duty of ₹ 4,43,64,969/- is based on the alleged clandestine clearances of 14828 boras of Shyam Bahar Gutkha shown in the records (Parcel way bills Forwarding Notes) issued by Railways/authorized agents obtained from two sources out of total 14828 boras, Parcel way bills and forward ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... representatives used to purchase goods from the manufacturer and he did not state that the goods booked in the name of Shri Jaganath were those which were removed without payment of duty. We also find that during the whole course of proceedings there is no positive evidence to establish that the alleged quantity of 133452000 pouches of Gutkha was manufactured by the appellant. As held by this Tribunal in the above stated case of M/s Som Aromatics and others duty of excise is on manufacture and unless manufacture is established duty cannot be demanded. Therefore, we hold in the present case revenue could not establish manufacture of alleged quantity of Gutkha. 6. Therefore, we set aside the impugned Order-In-Original and allow the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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