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TMI Blog2022 (8) TMI 495X X X X Extracts X X X X X X X X Extracts X X X X ..... nner - Such logic is not acceptable. The provisions of Rule 26 have not been satisfied to impose penalties. The learned Adjudicating Authority has found that the respondents herein have duly accounted for the cash seized from their premises and as they have not dealt in any manner with the goods that can be held liable for confiscation, no penalty is imposable on them. When two authorities of the Department i.e. the Adjudicating Authority as well as the Appellate Authority have given categorical findings against the allegations made in the show cause notice giving cogent reasons, the Department is attempting to take the issue back to the beginning by filing these appeals. The Department has not made any case for confiscation of cash seized from the premises of Shri Gurmeet Singh and Shri Preet Singh regarding seizure of case of Rs.17 lakh. The Adjudicating Authority as well as the Appellate Authority have convincingly rejected the contention made in the show cause notice and therefore, there are no reasons as to why the impugned order needs to be interfered with - Appeal dismissed - decided against Revenue. - Excise Appeal No.70567 of 2020, Excise Appeal No.70077 of 2021 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ending investigation; he could not produce any satisfactory evidence regarding the legal position of Rs.17 lakhs. A show cause notice dated 07 March, 2016 was issued to M/s PML and other respondents. Vide Order-in-Original dated 09 December, 2019 the Adjudicating Authority dropped the proceedings against M/s Preet Machines Ltd., Shri Ritesh Kapoor, Shri Gurmeet Singh Shri Preet Singh. The appeal filed by the Department before learned Commissioner (Appeals), Meerut vide impugned order dated 28 August, 2020 upheld the order of lower authority hence the Department has preferred these four appeals. 4. Learned authorized representative reiterates the grounds of appeal and submits that the Lower Authorities referred to certain case laws to infer that admission by Shri Ritesh Kapoor, Shri Gurmeet Singh Shri Preet Singh has no evidentiary value and could not be relied upon to confirm the case as Shri Ritesh Kapoor had retracted his statements through a letter dated 16 March, 2015 addressed to Chairman CBEC, that the case laws relied upon by the Adjudicating Authority and the Commissioner (Appeals) are not applicable to the facts and circumstances of the case. He prays that the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een already proposed in the show cause notice dated 08 November, 2016; M/s PML, Shri Preet Singh and Shri Gurmeet Singh have settled the case in respect of show cause notice dated 08 November, 2016 and as such the proceedings in this case have no validity; case laws relied upon by the Revenue while filling appeal against the dropping of the case of acceptance that statements have been retracted and are not applicable to the main case. 7. Shri Ravi K Tondon learned chartered accountant appearing for Shri Ritesh Kapoor submits that Rs.3.24 Crore seized from the premises of Shri Ritesh Kapoor belongs to various firms/parties; documentary evidence to these effect have been submitted during the personal hearing. He further submits that there was no sale bill issued by him, that no cheque has been received by him from any party; no cheque was issued by him to any party, no order has been placed by him; no evidence of cash payment was found; no verification of their books of accounts regarding cash available was made; no cross-examination of their witnesses was conducted. Learned counsel further submits that their appeal filed against the proceedings initiated vide show cause notice da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) an excise duty invoice without delivery of the goods specified therein or abets in making such invoice; or (ii) any other document or abets in making such document, on the basis of which the user of said invoice or document is likely to take or has taken any ineligible benefit under the Act or the rules made thereunder like claiming of CENVAT credit under the CENVAT Credit Rules, 2004 or refund, shall be liable to a penalty not exceeding the amount of such benefit or five thousand rupees, whichever is greater.] 9. On going through the above provisions of the Rule 26, I find that the application of Rule is inescapably linked to dealing in goods where the concerned person should have reasons to believe that the same are liable for confiscation. In this case, I find that the main allegation of the Department is that the respondents M/s PML have availed CENVAT credit only on the basis of forged/doctored documents like invoices without purchasing, receiving or utilizing the material in the manufacture of their final product i.e. steel rolling machine . I find that there is certain contradiction in the approach of the Department. On the one hand the Department s allega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 made applicable to Central Excise matters. The next question that arises that whether any amount could have been confiscated treating the same as sale proceeds. In our opinion, the amount of Rs. 25 Lakhs has to be treated as sale proceeds in view of the fact that Shri Daswani himself admitted that the amount of approximately Rs. 25 Lakhs related to the sale during the period from 1-12-89 to 23-1-1990, during which no cash remittance were made. This admission, in our opinion is sufficient for holding that the amount is sale proceeds of unaccounted and non-duty paid Camphor and Isoborneol. For coming to this conclusion we are supported by all the evidences relating to clandestine removal such as transporter's statements, documents relating to unaccounted transportation, statements of concerned persons corroborating each other and unexplained and unaccounted cash recovered from Shri Daswani and his admission as regards the balance amount, the department does not have any evidence to show that the same was sale proceeds of the currency. 10. I also found that the Adjudicating Authority has given detailed finding as to how he is satisfied that the cash seized in respect of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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