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TMI Blog2019 (3) TMI 1045X X X X Extracts X X X X X X X X Extracts X X X X ..... It is a settled law that power of confiscation does not extend to goods still inside the factory premises and not cleared without payment of duty - it has been held in various cases that confiscation of the goods and imposition of penalty is bad if the goods are not cleared without payment of duty and are still inside the factory - in the absence of any evidence of manufacture and removal of the goods from the factory of M/s. Maharaja Soaps Industries Pvt Ltd without payment of duty, the order of confiscation of goods and penalty is not sustainable. Redemption fine - penalty - Held that:- There is no evidence has been brought on record by the Revenue that the Proprietor has deliberately used the vehicle for clandestine removal of the goods. Further, there is no evidence either of the owner or driver of the vehicle having knowledge of the alleged removal of goods without payment of duty and the liability of the said goods for confiscation - In the absence of such cogent evidence, the imposition of redemption fine and penalty is not sustainable. Appeal allowed - decided in favor of appellant. - E/21737/2017-SM, E/21738/2017-SM, E/21739/2017-SM - Final Order No. 20265-2026 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a truck loaded with detergent cakes of M/s. Maharaja Soaps Industry Pvt. Ltd. was present in the premises of M/s. Maharaja Industries without any duty paying documents. The officers seized the vehicle bearing No. KA 17B 2055 of M/s. Harita Transport, loaded with SHASHI brand detergent cakes belonging to M/s. Maharaja Soaps at the premises of M/s. Maharaja Industries in terms of Section 110 of the Customs Act, 1962. Shri R. Prakash, General Manager of the firm stated that no documents were available in respect of the goods loaded on the vehicle. Hence, both the vehicle and goods were seized with a reasonable belief that M/s. Maharaja Soaps Industry Pvt Ltd. had manufactured the finished goods and removed the same without raising invoices and without payment of appropriate duty and the goods and truck are liable for confiscation. Further, the allegation against Mr. M. E. Ravi Raja, Proprietor of M/s. Harita Transport is that he has transported the offending excisable goods from the premises of M/s. Maharaja Soaps Industry Pvt Ltd to the factory of M/s. Maharaja Industries without any valid document thereby contravening the provisions of Central Excise Act and Rules made thereunde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de the factory and was not removed from the factory and in the absence of removal of goods from the factory, the question of payment of duty or issue of Central Excise invoices in respect of the goods so removed does not arise. He further submitted that when the goods are inside the factory and had not been removed without payment of duty, the confiscation of the goods held in stock inside the factory only on the basis of suspicion that the goods may be removed from the factory is not sustainable on facts and law. He further submitted that show-cause notice does not refer to any statement of Shri R. Prakash, Manager and therefore, the allegation in the show-cause notice is not proved by any oral or documentary evidence. He also submitted that the entire goods was seized on the basis of Mahazar alone. It is his further submission that the show-cause notice is the foundation on which the Department has to build its case. Further, Mahazar is an evidence of things seized. Further, the Mahazar records the details of things found and seized is not oral evidence of any person and hence, such reliance on such averments in the Mahazar is impermissible in law. He also submitted that Mahazar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that as far as allegation against M/s. Maharaja Soaps Pvt Ltd is concerned that they have cleared the goods without payment of duty, the detergent cake and detergent powder and classifiable under CTH 3401 of the Central Excise Tariff Act, 1985 are covered by assessment under Section 4A of the Central Excise Act, 1944. Goods are also covered by Standards of Weights and Measures (Packaged Commodities) Rules, 1977 / Legal Metrology (Package Commodities) Rules, 2011. Annexure II to Mahazar shows that detergent cake and detergent powder were admittedly in packed condition and in terms of Rule 6 of Standards of Weights and Measures (Packaged Commodities) Rules, 1977, each package should contain a declaration of the name and address of the manufacturer and packer, the common or generic name of the commodity in the package, the month and the year in which the commodity was manufactured or pre-packed. Further, the Mahazar does not show that the packed detergent cake and detergent powder contained the name of M/s. Maharaja Soap Industries Pvt. Ltd. as the manufacturers of the said goods. In the absence of any material evidence of the manufacturer of the goods found in the vehicle, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ps Industries Pvt Ltd without payment of duty, the order of confiscation of goods and penalty is not sustainable in view of the following decisions: Commissioner vs. Bijariji Manufacture Co. Pvt. Ltd.: 2015 (323) ELT 106 (Del.) Maan Aluminium Ltd. vs. CCE, Indore: 2015 (322) ELT 184 (SC) Oudh Sugar Mills Ltd. vs. UOI: 1978 (2) ELT J 172 (SC) CCE vs. Laxmi Engineering Works: 2010 (254) ELT 204 (P H) CCE vs. Brims Products: 2011 (271) ELT 184 (Pat.) 6.1 As far as imposition of redemption fine of ₹ 50,000/- and penalty of ₹ 5,000/- on the proprietor of M/s. Harita Transport, I find that no evidence has been brought on record by the Revenue that the Proprietor has deliberately used the vehicle for clandestine removal of the goods. Further, there is no evidence either of the owner or driver of the vehicle having knowledge of the alleged removal of goods without payment of duty and the liability of the said goods for confiscation. In the absence of such cogent evidence, the imposition of redemption fine and penalty is not sustainable. 7. In view of my discussion above, I am of the considered view that the impugned order is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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