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TMI Blog2022 (9) TMI 739X X X X Extracts X X X X X X X X Extracts X X X X ..... stine removal of goods and both the notices are based on the search conducted on 16.7.2013. It can safely be said that the further investigation as well as the issuance of 2nd show cause notice is the result of seizure of 44531.50 Kgs. of Lead Ingots from the premises of the Appellant on the premise that the appellant is into clandestine removal of the goods - when the learned Commissioner while dropping the demand in the 2nd show cause notice has examined the chart regarding the manufacturing activity under taken by the Appellant for the period from April, 2012 to July, 2013 then that would also include the Lead Ingots, which according to revenue must have been produced somewhere between May, 2013 upto the date of search i.e. 16.7.2013 and which is the core issue in the 1st show cause notice herein. A perusal of the 1st Show cause notice, which is presently in issue, would show that it is based on the statements of Mr. Mukesh Maheshwari as well as the statement dated 23.7.2013 of Shri Shyam Singh Jadon, Excise Assistant of the appellant coupled with RG-1 register - Admittedly, a particular act is required to be done in a particular manner as provided under the statute but an in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... econdary Higher Education Cess Rs.81,106/-, totalling Rs.83,53,967/- for the period from 9.6.2013 to 12.7.2013. The 2nd show cause notice was adjudicated firstly, in which the Adjudicating Authority vide Order-in-Original dated 28.12.2018 confirmed the demand but the 1st Appellate Authority i.e. Commissioner (Appeals) vide Order-in-Appeal dated 28.6.2019 set aside the demand raised in the 2nd show cause notice and held that the adjudication order was based on assumptions and presumptions and is not sustainable. The said order was accepted by the competent authority of the department on 21.10.2019 and no appeal was preferred by them. 3. Relying upon the Order-in-Appeal dated 28.6.2019 of the Commissioner (Appeals), the Adjudicating authority while adjudicating the 1st show cause notice regarding confiscation, directed that those 44531.50 kgs. of Lead Ingots be finally released to the appellant without any fine or penalty. But on appeal being filed by the department, the learned Commissioner (Appeals) vide impugned order dated 31.3.2021 reversed the order of the adjudicating authority and held the issued involved herein is separate proceedings and the 2 nd show cause notice a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nable belief that 44531.5 Kgs of the Lead Ingots amounting Rs. 56,42,507/-, was kept unaccounted with the intention to clear the same without payment of duty in violation of the provisions of the Central Excise Rules, 2002. The said stock was seized under the provisions of the Central Excise Act, 1944 and handed over for safe custody to Shri Mukesh Maheshwari. Similarly, officers called the Invoices/Bills of the stock of the raw materials found in the factory but Shri Maheshwari failed to produce the same before the officers. The stock of the few of the raw materials (only chemical) recorded are detailed in Annexure-B to the panchnama. ...............As the Noticee No.1 failed to justify excess quantity of 44,531.50 Kg of Lead Ingots valued at Rs. 56,42,507/- during the course of physical verification on 16/07/13 therefore show cause Notice was issued vide C. No. V(78)18-44/11A/C-III/2013-14/5756 dated 08/01/2014 by the Deputy Commissioner Central Excise Division-I, Indore proposing, therein, confiscation of the same. 5. Similarly the Order-in-Appeal dated 28.6.2019, dropping the demand in the 2nd show cause notice, also specifically recorded in paragraph 2.3 about 44531 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in any register and that the search of appellant herein was conducted on 16.7.2013 and there are no records of goods manufactured by the appellant from May, 2013 onwards and non-accounting of goods for such a long time and such a huge quantity will attract Rule 25 of Central Excise Rules, 2002. So according to me when the learned Commissioner while dropping the demand in the 2nd show cause notice has examined the chart regarding the manufacturing activity under taken by the Appellant for the period from April, 2012 to July, 2013 then that would also include the Lead Ingots, which according to revenue must have been produced somewhere between May, 2013 upto the date of search i.e. 16.7.2013 and which is the core issue in the 1st show cause notice herein. 7. I agree with the learned Commissioner that the issue involved herein is whether the goods seized by the department are liable for confiscation under the Act? But then the question would arise on what ground the goods can be confiscated. No material has been produced on record to justify the confiscation. A perusal of the 1st Show cause notice, which is presently in issue, would show that it is based on the statements of Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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