9911796707
TMI Blog2023 (2) TMI 604X X X X Extracts X X X X X X X X Extracts X X X X ..... on 28-29 October, 2010 placing reliance upon Gupta Sheet Metal vs. CCE Gurgaon 2008 (232) ELT 798 (Tri. LB). 2 E/50187/2021 (Appeal -2) M/s Pride Tobacco Co. Pvt. Ltd. Appeal against order (Order-in-Original No. 05/Pr. Commr/CE/BPLII/ 2020 dated 19.08.2020 passed by the Principal commissioner, CGST & Central Excise, Bhopal). confirming the demand of duty and interest under section 11A and equal penalty under section 11AC alleging clandestine removal for goods despite rejection of remission holding goods being burgled. 3 E/50188/2021 (Appeal -3) Sh. Anup Surjan (Appellant No. 3) Appeal against Order-in-Original No. 05/Pr. Commr/CE/BPL-II/2020 dated 19.08.2020 passed by the Principal commissioner, CGST & Central Excise, Bhopal). confirming personal penalty Rs. 19,52,225/- under Rule 26(1) of CER, 2002. 4. This is the second round of litigation. Earlier this matter had come up before this Tribunal in Excise Appeals Nos.56854, 569333, 569334/2013-EX (SM) and vide Final Order No.50818-50820/2017-EX (SM) dated 13.02.2017, this Tribunal was pleased to allow the appeals by way of remand for de novo adjudication, wherein this Tribunal had observed that it is on record that so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hours to 18 hours, and Inspector for night shift was withdrawn. The appellant had placed Security Guard round the clock. The factory premises were located in rented premises. 7. On 29.10.2010 at around 10 hrs., the Inspector of Central Excise In charge of the Factory of the appellant had visited on the routine round and he observed that back side door of the unit was found broken. Upon looking through the broken door, it appeared that there was a huge shortage of stock of cigarettes in the storage area/room. The said Inspector (Shri Ashok Soun Kunwar) informed on telephone to the Director, Mr. Anup Surjan at around 11.30 A.M. regarding the apparent shortage and the door found broken. 8. On the same day, a panchnama was drawn by the said Inspector and other officers in the presence of other witnesses, wherein it was mentioned that at about 7 hours, the witnesses were called and they were shown half broken door and the verification of the cigarettes kept in the bonded store was got done, and it was found that only 9 boxes (CFC) were lying in it, out of 172 boxes, which had been kept in the store room. The excise duty on such stock (found short) comes to Rs.20,60,016/-. The officers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant company with regard to their complaint of theft, which was received by the Police on 29.10.2010 and a copy of the complaint had also been received by the Police through post. It is also mentioned that the office of Dy. Commissioner, Central Excise, Division-Bhopal has informed the Police that Central Excise is investigating the matter of missing of 163 CFC cigarettes. Further, on completion of investigation by the Central Excise, legal procedures shall be initiated on the application of the company. 10. Further, statement of the Director, Shri Anup Surjan was recorded under Section 14 of the Act on 12.11.2020. In reply to Question No.1, whether they have got registered any FIR in Kotwali Police Station, Bhopal, reference of which was given with regard to seizure of 25 cartons by the Police. In answer, it was stated that the Director came to know from his own sources that a person named Mohal Lal is trying to sell cigarette of Midland brand at lesser rates and accordingly, he was keeping a watch through his persons. He also informed to SSP, Kotwali about the suspicious activity of the said Mr. Mohan Lal and others. Thereafter, Kotwali Police Station took action and they arrest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uj nothing incriminating was recovered. The appellant by their letter dated 11.11.2010 requested the Commissioner of Central Excise, Bhopal informing that 25 cartons, out of 163 pilfered cartons of cigarettes have been recovered by the Kotwali Police, Bhopal. It was further informed that in spite of repeated request of the appellant, the Mandideep Police have not registered FIR stating that they have received a letter from the Central Excise, that the Department of Central Excise is investigating the matter and hence, Police is waiting for response of the Department. Accordingly, the appellant had prayed for suitable instructions and directions may be given to the Police to investigate the pilferage of the cigarettes cartons as per law, including recovery of the stolen cigarettes and bringing the culprits to light. Thereafter, letter dated 16.11.2010 was written by the Range Dy.Commissioner to the Superintendent of Police District Raisan, M.P. mentioning that on 30.10.2010, the Department had written a letter to the Police that 163 cartons of Midland brand filter cigarettes were removed clandestinely without payment of duty. Shri Anup Maheswhari, Director of the firm was arrested o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and of duty. However, the Commissioner (Appeals) was pleased to set aside the penalty imposed, both on the appellant and on the Director of the Company. Thereafter, the appellant filed application for remission of duty under Rule 21 of Central Excise Rules on 11.04.2013. The appellant also filed appeal before this Tribunal against the order of the Commissioner (Appeals) dated 15.01.2013. Revenue also filed cross appeal before this Tribunal against dropping of the penalty on the Director and the Company. 16. All the three appeals were heard and disposed of vide Final Order dated 13/02/2017 by way of remand, as mentioned hereinabove. 17. In the meantime, pending re-adjudication pursuant to remand, ld. Principal Commissioner, CGST and Central Excise, Bhopal have passed order-in-original dated 22.05.2019 in the remission matter. Ld. Commissioner took notice of the final order dated 13.02.2017 of this Tribunal and also took notice of the directions given. Further, observed that the final order of this Tribunal have been accepted by the Department, as there is no further appeal. Ld. Commissioner observed that the loss of goods is disputed between the appellant and the Department as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record that the appellant had gone to the Police Station along with Central Excise Inspector and have lodged the complaint of theft with the Police at the Police Station, Mandideep. It is also evident from the records that Police have come to inspect the factory. It was only at the instance of the Revenue that the Police did not further investigate, as the Dy. Commissioner of Central Excise had informed the SHO of Mandideep in writing by letter dated 30.10.2010, that the Department of Central Excise is investigating the matter and accordingly, the Police should not take any action. It is further evident from the records that the appellant - Director made all efforts to get the FIR registered by moving the concerned Superintendent of Police and the I.G. Police. The appellant also with the help of his persons kept a watch in the market and thereafter, on the appellant's identification about the suspected movement of some persons, the Police Officer of Kotwali P.S., Bhopal seized 25 cartons - CFC Midland brand cigarettes manufactured by the appellant. The appellant had kept the Department also in loop and regularly informed the developments. The appellant also requested the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Police and accordingly, the impugned order is bad for not complying with the directions of this Tribunal. Accordingly, he prays for allowing of their appeal with consequential benefits. 22. Ld. Authorised Representative for Revenue relies on the impugned order(s). 23. Having considered the rival contentions, I find that the allegation of clandestine removal against the appellant is not established. It is evident on the face of the record that the appellant have taken all steps as a person of ordinary prudence, to cooperate with the Department and have taken effective steps for getting the FIR registered and have pleaded before the Police Department repeatedly including the higher officers to investigate the matter. This is also corroborated by the fact that the appellant suo moto appeared before the Court of Judicial Magistrate in complaint case No.1 of 2010 of P.S. Kotwali, Bhopal and they also pleaded to give directions to the Police to investigate. Thus, I hold that no case of clandestine removal is made out. 24. In view of my findings and observations, I hold that the appellant is liable to pay duty only for the proportionate goods finally lost and is not liable ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
