9911796707
TMI Blog2018 (12) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner of Central Excise & Service Tax, Kanpur. 2. The brief facts of the case are that M/s Radhey Shyam and Sons (hereinafter referred to as manufacturer-appellant) were engaged in the manufacture of Pan Masala containing tobacco which is commonly known as Gutkha falling under Tariff Item No.24039990 of First Schedule to Central Excise Tariff Act, 1985 under the brand name "VIKAS" and "SIMOGA" allegedly with the help of two pouch packing machines (FFS) from some part of the premises no.130/1309, Bagahi, Kanpur. The officers of Central Excise Intelligence conducted a search of the premises situated at 130/1309, Bagahi, Kanpur on 29.10.2009. It was found that the said premises consisted a big compound having various separate doors or shut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tements dated 31.10.2009 and 02.12.2009 of Shri Sharad Gupta, proprietor of M/s Gaurav Enterprises, who was also owned house some part of the same premises 130/1309, Bagahi, Kanpur. e) Two statements dated 29.10.2009 and 30.10.2009 of Shri Ajay jaiswal, Partner of M/s A.G. Engineering Works. f) Statement dated 03.11.2009 of Shri Arpit Jain, Director of M/s Shree Bhawani Prints & Laminates Pvt. Ltd. g) Two statements dated 09.03.2010 and 04.06.2010 of Shri Vikas Agarwal, Partner of M/s Shubh Multipack. h) Statement dated 13.11.2009 of Shri Dilip Kumar Malu, Manager of M/s Aman Marketing (supplier of tobacco). In his statement dated 29.10.2009 Shri Rajeev Gupta admitted that they were manufacturing Gutkha with "VIKAS" brand and that they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1st July, 2008 to October, 2009. It further appeared to revenue that per machine per month duty liability was to be fixed at Rs. 12.5 lakhs in terms of Notification No.42/2008-CE dated 01.07.2008 since the MRP of Gutkha was Rs. 1. Therefore, it appeared to revenue that from 1st July, 2008 to October, 2009, duty liability worked out to Rs. 4 crores. Therefore, through show cause notice dated 08.02.2011 manufacturer-appellant were called upon to show cause as to why Central Excise duty of Rs. 4 crores should not be demanded from them under first proviso to Sub-section (1) of Section 11A of Central Excise Act, 1944. The other appellant was proposed to be imposed with personal penalty. 3. The manufacturer-appellant submitted before the Origina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allegedly mounted with laminated rolls of VIKAS Brand Gutkha and certain raw materials and that officers taken photographs of the machines found in the said premises and slapped the ownership of the premises along with raw materials to the manufacturer-appellant, projecting the premises as unregistered premises of manufacturer-appellant and fastened the duty liability on the same. They further submitted that the registered premises of manufacturer-appellant was a part of house compound bearing no.130/1309, Bagahi, Kanpur. Before the Original authority they submitted the ground plan of the entire premises and marked the premises occupied by them in red color. They further submitted that hall no.1 and 5 in the map was premises other than occ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ajay Jaiswal, Partner of M/s A.G. Engineering Works stated that he had never repaired or supplied FFS Machine to the manufacturer-appellant and that he had supplied machines to M/s Gaurav Enterprises and also submitted copy of relevant invoices. V. The Commissioner had denied the cross examination of both Shri Shri Har Narayan Gupta partner of M/s Anandeshwer Enterprises and Shri Sarad Gupta and their statement dated 29.10.2009 and 02.12.2009 of Shri Har Narayan Gupta and statement dated 31.10.2009 and 02.12.2009 of Shri Sarad Gupta are not reliable evidences. The learned Counsel relied upon the ruling of Hon'ble Supreme Court in the case of Andaman Timber Industries Vs Commissioner of Central Excise, Kolkata reported at 2015 (324) ELT 64 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ises and M/s Anandeshwer Enterprises. 5. Learned A.R. for revenue has relied on the finding by learned Commissioner. 6. Having considered the submissions from both the sides and on perusal of records and the various affidavits placed before us, we find that the premises which were rented out to the manufacturer-appellant were not the premises where two pouch packing machines were found by the officers. On the basis of various submissions made by the learned Counsel for appellant we find that the two pouch packing machines were found in the premises rented out to M/s Gaurav Enterprises and M/s Anandeshwer Enterprises. Further, revenue could not establish any evidence to establish manufacture of Gutkha by the appellant and could not establi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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