9911796707
TMI Blog2019 (3) TMI 1497X X X X Extracts X X X X X X X X Extracts X X X X ..... are - that the main appellant (Prabhat Zarda Factory) is engaged in manufacture of Chewing Tobacco falling under Chapter Heading No. 24 of CETA, 1985 in the brand name of 'Ratna Chhap Zafrani Patti,' 'Prabhat brand Zafrani Patti' and 'Rajratna special Qiwam,' etc. Based on the intelligence that, appellant was indulging in clandestine removal of their final goods, a search was conducted by the officers of Anti-evasion at the premises of M/s. Rudraksha Marketing (Distributor), B-45, Wazirpur Industrial Area, New Delhi on 28.02.2008. During the course of search, they were found to be engaged in the trading of Ratna chhap Zafarni Patti and Qiwam manufactured by the appellant. During the course of search of premises, certain incriminating docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground is that, Sh. Lalit Kumar Arya, the karta of the Joint Hindu family business and the owner of the copyright and trademark of the products Chewing Tobacco manufactured in the name of 'Ratna Chaap Zafrani Patti', 'Prabhat Brand Zafrani Patti' etc. decided to allocate the business amongst his three sons Late Sh. Pradeep Kumar Arya, Jyoti Kumar Arya & Vijay Kumar Arya, who have following companies, M/s Prabhat Zarda Factory Co., Prabhat Zarda Factory (Overseas) respectively. That, late Pradeep Kumar Arya, Managing Partner of the appellant died on 7.2.2007, due to cancer. That, after the death of Pradeep Kumar Arya, his wife, daughters & only son i.e. Sh. Purshottam Kumar Arya started to look after the said business. Sh. Purshottam Kumar A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the appellant, asking as to why Central excise duty should not be confirmed for alleged clandestine clearance and penalties should not be imposed on them. The appellants denied all allegations levelled in the show cause notice, however, the learned Commissioner confirmed the Central Excise duty on the appellant along with interest and penalty. The learned Commissioner also imposed penalties on Shri Purshottam Kumar Arya and Shri K. N. Mehrotra. The appellants had challenged the said order-in-original before this Tribunal. This Tribunal vide Final Order dated 20.04.2017 dismissed the appeals of the appellants. The appellants assailed the Final Order dated 20.04.2017 passed by this Tribunal before the Hon'ble High Court of Delhi. The Hon'bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bitrator passed an interim order, allowing use of brand name by appellant also, which irritated the opposite party (relatives) in the litigation, who hatched the conspiracy & put the appellant in such situation. He further submitted that no incriminating documents were recovered from the premises of the appellant. He further argued that no positive evidence has been brought on record to come to a conclusion that appellant has clandestinely removed the goods. 5. The Authorised Representative for Revenue reiterated the findings of the impugned order and submitted that appellants have admitted in their statements that they have manufactured & cleared the goods without payment of duty. He placed reliance on various rulings. He further submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 14 of the Act, whose makers are not examined-in-chief before the adjudicating authority, i.e., before Respondent No. 2, would have to be eschewed from evidence, and it would not be permissible for Respondent No. 2 to rely on the said evidence while adjudicating the matter. Neither, needless to say, would be open to the Revenue to rely on the said statements to support the case sought to be made out in the show cause notice. (iv) Once examination-in-chief, of the makers of the statements, on whom the Revenue seeks to rely in adjudication proceedings, takes place, and a copy thereof is made available to the assessee, it would be open to the assessee to seek permission to cross-examine the persons who have made the said statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement is retracted, then the said statement cannot be relied upon. 8. We further find that, the department is relying upon the records recovered from the premises of M/s. Rudraksha Marketing, Delhi. However, we find that appellants were having a family dispute with them, which is evident from the pleadings and various documents annexed with the appeal. Therefore, the recovered documents (from Rudraksha) cannot be relied upon in isolation. We find that M/s Rudraksha Marketing and M/s Aggarwal Trading Co. were also dealing or distributing the goods manufactured by the competitors/ relatives of the appellant. We hold that the charge of clandestine removal is a serious charge, and has to be proved by the department by bringing on record positi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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