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TMI Blog2019 (4) TMI 530X X X X Extracts X X X X X X X X Extracts X X X X ..... tation / manufacturing but could not adduce the supporting documents. Learned Commissioner in the impugned order has rejected those documents as afterthought and confirmed the demand holding that as the Appellant in the tender documents declared himself as manufacturer and hence he cannot be allowed to turn around to say that the goods were procured from job workers. The confirmation of demand solely on the basis of fact that Appellant declared himself as manufacturer in tender documents cannot be sustained in law. The demand confirmed on the basis of conjectures and surmises is unsustainable in law - appeal allowed - decided in favor of appellant. - Excise Appeal No.52325/2018 - FINAL ORDER No.50488/2019 - Dated:- 5-4-2019 - SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) And SHRI BIJAY KUMAR, MEMBER (TECHNICAL) Shri Jitendra Singh Shri Piyush Kumar, Advocates for the appellant Shri H. C. Saini, Authorised Representative for the respondent ORDER ANIL CHOUDHARY: 1.1 This is second round of litigation in this case and the Order-in-Original No. 12/D-I/17 dated 29.05.2017 appealed against is the one in de-novo proceedings in respect of Show Cause Notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ligible to participate in the tender and Appellant in his Tender Applications duly declared himself to be a manufacturer. 2.2 Later, on the basis of an intelligence, DGCEI obtained the documents pertaining to the said tender from HSCC and issued summons to the Appellant for appearance. Shri Arun Tibrewal, Proprietor of Appellant - R.S. Industries, did not evoke any response, DGCEI officers searched the premises situated at plot No. 122, Gali No. 13, Wazirabad, Delhi-110054 and office located at Room No. G, 1st floor, 11 Clive Row, Calcutta on 10.09.2002. During the search at premises at Wazirabad, the officers found 40 numbers of motorized stitching machines, 72 pieces of mosquito bed nets of size 6 x6 in ready to sell condition, white cuttings of net, cloth, stitching thread, thread cones and clothes tapes, etc. As stated in Panchnama, Shri. K.K. Bajaj, present at the premises informed the officers that the premises was in the possession of Moon Beverages Limited which was engaged in bottling and distribution of Coca Cola. In the search at Kolkata office, nothing incriminating was found. 2.3 On examination of documents, procured from HSCC in respect of the goods supplied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s extensively and perused the records with assistance of learned counsel for the Appellant and learned A.R for Revenue. 3.2 At the outset, we observe that on the basis of investigation and search, DGCEI issued two Show Cause Notices viz. (i) Show Cause Notice No. NZU/INV/46/2001/Pt.RSI/0479 dated 06.03.2003 proposing confiscation of goods seized at Wazirabad premises under Panchnama dated 10.09.2002; (ii) Show Cause Notice No. NZU/INV/46/2001/Pt.RSI/1170 dated 20.07.2004 impugned in present Appeal proposing demand of duty in respect of goods supplied to HSCC against Tender, alleging manufacture. 3.3 In respect of first Show Cause Notice dated 06.03.2003, the then Assistant Commissioner, Central Excise Division VIII Delhi-II confiscated the goods seized on 10.09.2002 and imposed penalty under Rule 25 of the Central Excise Rules, 2002 ignoring Appellant s submissions that the premises was never let out to Appellant and the material seized at the premises did not belong to him, as Appellant had supplied mosquito bed nets of size 6 x3 whereas the goods found at the premises were bed nets of 6 x6 , and steel beds meant for hospital supply. Appellant unsuccessfully contested the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.08.2015 has been accepted by the Department, as no further Appeal appeared to have been filed, the finding that the Wazirabad premises was not in possession of Appellant and that the Appellant did not carry out any manufacturing activity at the said place, has become final and binding and the present demand which has been confirmed on presumption that Appellant manufactured bed nets at the said premises and cleared the same without payment of duty cannot be countenanced. Per contra, Shri A K Saini learned A.R. submitted that both the cases are separate, one relates to demand whereas the other relates to seizure of goods found at Wazirabad premises and therefore, both have to be adjudged on the basis of material referred by respective Adjudicating Authorities in respective orders. On being asked, Shri Saini could not answer our specific query whether Tribunal s Final Order No. 54022/2015 dated 21.08.2015 has been accepted by the Department and requested for allowing some time to take instructions from concerned Commissionerate. In view of his request, we adjourned the hearing with instructions to find out the fate of Tribunal s aforesaid Final Order dated 21.08.2015. 4.2 Hearin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said premises. Learned Commissioner has confirmed the demand on the ground that there were 40 stitching machines lying at the premises, however without appreciating that there is no evidence available on record to show that any goods were ever manufactured from those machines and that the goods found at the premises during the raid being of 6 x6 size, and steel beds, did not belong to Appellant. D. Learned Commissioner has wrongly rejected documents furnished by Appellant during the course of investigation qua the manufacturing of goods on job work basis and transportation thereof from the job workers. The transporters in their respective letters have certified that they carried out transportation from job workers premises and the job workers who are semi-educated artisans, in their respective certificates in Bangla have categorically stated that they had carried out bed net manufacturing for Appellant on job work basis through middlemen. Department has not adduced any evidence that the said job workers are non-existent or that the documents furnished by Appellant are fictitious. 5.3 Per contra, learned A.R. reiterated the findings of the learned Commissioner in the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . We further find that on investigation, the job workers as well as transporters in their respective statements admitted to have issued the documents i.e bilty/letters evidencing transportation / manufacturing but could not adduce the supporting documents. Learned Commissioner in the impugned order has rejected those documents as afterthought and confirmed the demand holding that as the Appellant in the tender documents declared himself as manufacturer and hence he cannot be allowed to turn around to say that the goods were procured from job workers. Appellant has assailed the said finding that even though the Appellant declared himself as manufacturer before HSCC, there being no evidence of raw materials transportation to Wazirabad premises, employment of labourers for manufacturing of goods and admittedly there being no power connection and/or generator at the said premises, conclusion that the Appellant carried out manufacturing is ex-facie wrong. This argument of Appellant s learned counsel also appears to be tenable as we find that Smt. Ritu Agarwal and her husband Shri Haresh Agarwal vide their letters both dated 12.07.2004 (RUD 32 annexed with Show Cause Notice) clearly stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellants having produced the documents solely for raising higher bank loans appears to be sustainable. The demand is set aside 5.9 Per contra, reiterating the findings of learned Commissioner in para 51 and 52 of the impugned order, that HSCC had invited bids only from manufacturers and that the Appellant in the tender documents clearly declared himself as manufacturer, learned A.R emphasized that the order of learned Commissioner confirming demand being legal and proper, cannot be faulted. Relying on the judgment of Cambridge Woolen Mills Vs. CCE Chandigarh 2000 (120) ELT 687, learned A.R defended the impugned order. 5.10 We find that the order in the matter of Cambridge Woolen Mills, the Appellant therein claimed certain capacity to manufacture and later claimed that they procured the goods from market, learned Commissioner on the basis of their declaration and expert opinion of an expert rejected manufacturer s claim and held that having declared themselves as manufacturers having declared capacity and composition of resultant product, could not take a different stand in the later proceedings. The facts of said case are in stark contrast with the facts of present ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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