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TMI Blog2019 (2) TMI 938X X X X Extracts X X X X X X X X Extracts X X X X ..... into account the report of the Deputy Commissioner indicating absence of any mala fide on the part of the assessee. Such report of the Deputy Commissioner is also based upon the scrutiny of various relevant documents and has not been controverted and rebutted by the Revenue. Appeal dismissed - decided against Revenue. - APPEAL No. E/52440/2018-EX[SM] - FINAL ORDER NO. 50244/2019 - Dated:- 15-2-2019 - Mrs. Archana Wadhwa, Member (Judicial) Ms. Tamanna Alam (AR) for Revenue Shri Archit Upadhayay (Advocate) for Assessee ORDER Per: Archana Wadhwa Being aggrieved with the order passed by Commissioner, vide which he has vacated the show cause notice issued to the respondents, Revenue has filed the present app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requested for de-sealing of Five packing machines of MRP ₹ 1.50 per pouch, which were de-sealed on 11.07.2011 by the Superintendent. It was also observed during the visit that there was no seal on one pouch packing machines of GUTKHA of MRP ₹ 5.00 per pouch which was sealed on 01.06.2011. Accordingly, a record of proceeding on 11.07.2011 at 0030 Hrs was prepared. 6. In their statement recorded on 12.07.2011, Sh. Kamaljit Singh, authorized signatory of the Noticee and Sh. Harish Kumar, proprietor of the unit recorded on 13.07.2011 both recorded under Section 14 of the Central Excise Act, 1944, categorically admitted that no seal was found on the machine at the time of visit of the officer on the intervening night of 10.07.2011 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Rule 25 of the Central Excise Rule, 2002 and Rule 17 of Pan Masala Packing Machines (Capacity Determination Collection of Duty) Rules, 2008. 10. Accordingly, the Noticee was called to show cause as to why: Central Excise Duty amounting to ₹ 49,16,667/- should not be demanded and recovered from them under Section 11A of the Central Excise Act, 1944 read with Rule 9 of Pan Masala Packing Machines (Capacity Determination Collection of Duty) Rules, 2008 and why the said amount should not be adjusted against the amount of ₹ 1,28,00,000/- already lying unutilized/balance in the accounts of the Noticee for payment of Central Excise Duty; interest under Section 11AA of the Central Excise Act, 1994 should not be demanded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concluded that in terms of said report no irregularity was found. He further observed that there is no clinching evidence produced by the Revenue overriding the findings of the Deputy Commissioner or establishing any unauthorized manufacturing activities. The show cause notice does not allude to any solid evidence to substantiate the allegations raised therein other than the fact that the said pouch making machines of ₹ 5 was found unsealed and the seal was found to be lying next to the machine. In the absence of any evidence to show that the said machine has been used for manufacture of the goods, mere fact of the seal having been broken accidently during the period of closure cannot lead to the fact that the said machine was used fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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