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TMI Blog2023 (11) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... ctory has not followed Rules or paid duty under Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 in respect of 2 pouch packing machines [PPM] found installed at the premises of M/s Laxmi Tobacco Company on 19.09.2013. There is no clinching tangible evidence or any corroborative evidence against Appellant Shri Paresh R Amin to connect him with actual manufacture and also to establish him as a manufacturer. Thus, Shri Paresh R Amin cannot be treated as the manufacturer liable to duty, interest and penalty in this case. However, the facts of seizure of two PPM found duly installed and goods seized in the premises on 19.09.2013 also have to be considered independently even without the support of any such of statements - It is not acceptable that owner of any premises would allow any third party to enter his premises to carry on business, may it is for the licit or the illicit business by any such third party. Any person with reasonable prudence will at least prepare a written rent agreement and clear evidences of rent receipts to keep his skin safe of any such illicit business, if any. Shri Purshottambhai C Patel is father of Shri Ashwinbhai P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in working condition manufacturing notified goods i.e. Pan Masala Containing Tobacco falling under tariff 2403 99 90, known as Gutkha . It was also noticed that duplicates of leading brand of Vimal , Rajkolapuri , Gomti were being manufactured there. During said search, it was also noticed that the notified goods were being manufactured without Central Excise Registration and no duty was paid under Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008. Therefore, the said 2 Pouch Packing Machines, Raw Materials and Packing Materials found were placed under the seizure. Machines and goods valued at Rs. 15,53,700/- were seized under Panchnama dated 19.09.2013 drawn at premises of M/s Laxmi Tobacco Company, under reasonable belief that the same were of offending nature and goods liable to its confiscation. 2.1 During investigation, statements of Shri Purshottambhai Chhotabhai Patel (alias das kaka owner of the premises of M/s Laxmi Tobacco Co., from where packing machines, the notified goods, raw materials packing materials were found) were recorded. Statements of S/Shri Paresh R Amin [Appellant] and Ashwinbhai S/o Purshottambhai Chho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve Officers raided searched premises of M/s Laxmi Tobacco Company on 19/09/2013, details of which were recorded in Panchnama dated 19.9.2013 drawn. c) During the said search, the Central Excise officers noticed that in the Godown No.3 of M/s Laxmi Tobacco Co., 2 Pouch Packing Machines (Form, Fill Seal - FFS) were found installed and in working condition manufacturing duplicate brands of notified goods i.e. Pan masala containing tobacco falling in CTH 2403 99 90, known as Gutkha . Duplicates of brand names of Vimal , Rajkolapuri , Gomti were manufactured. During search, some quantities of notified goods of various brands, raw materials / packing materials required to manufacture such Gutkha were found in premises. Notified goods were manufactured without Central Excise Registration and duty was not paid under Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008, Pouch Packing Machines, goods and raw materials and packing materials were also placed under seizure. d) The letter head of M/s Laxmi Tobacco Co was also found which shows details of packing materials rolls and finished goods. e) The Residential Premises of Shri Paresh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble evidence to prove that Shri Pareshbhai R Amin is a manufacturer, liable to pay duty with interest and penalty. There is no evidence to connect Shri Pareshbhai R Amin with actual manufacturing notified goods, except statements, which are not valid under the law. In absence of any independent and/or tangible or corroborative evidences on record against Shri Paresh R Amin, he cannot be considered as the manufacturer liable to pay duty, interest and penalty. 4.1 Shri Jadeja submits that levy of duty under Central Excise Act is on manufacture as defined in Section 2(f) of Central Excise Act, 1944 and the person who carries out act of manufacture is only manufacturer who is liable to pay duty becomes an assessee by virtue of Rule 2(c) and has to take Registration as per provisions of Rule 9 of Central Excise Rules, 2002. However, Appellant is individual and not an Assessee or a manufacturer. Investigation shows that it was undeclared factory. Revenue has wrongly alleged that Appellant was partner who have contravened provisions of Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 in connection with unregistered manufacturing unit detec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earch on 19.09.2013, There is no independent supporting evidence brought on record to indicate (i) clandestine manufacture; (ii) clandestine/ disproportionate/ unaccounted purchase, receipt, consumption of inputs and packing material, required for manufacturing quantity of Gutkha clandestinely from factory; (iii) freight payment for any such movement; (iv) unauthorized payment for procuring unaccounted inputs and packing material; (v) disproportionate power consumption, capacity utilization and labour employed; and (vi) unaccounted sales proceeds in substantial cash from factory or office premises in direct control of Shri Pareshbhai Ramanbhai Amin, backed by confirmation giving by anyone on such transaction. Thus Link between Machines found installed in factory of someone else and documents recovered in search and activities of this Appellant is not established any nexus with clandestine manufacture of goods in question. Entire case was based on unjustified assumptions on the statements of co-noticee relied without following procedure envisaged in section 9D of Central Excise Act 1944, which are not free from doubt. There were fatal infirmities with products and there was no evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M and the goods found on 19-09-2009 as well as finding of the impugned order-in-Original. He also submits to reject the Appeals filed by Appellants. 6. We have carefully considered the submissions made by both sides and perused relevant records. The main issue is to decide/ascertain who is the manufacturer liable for payment of duty in this case. There is no dispute on the facts that on a specific information, Central Excise Officers have detected an unregistered factory on 19.09.2013, where 2 Pouch Packing Machines [PPM] were found installed and in working condition, manufacturing notified goods i.e. Pan Masala Containing Tobacco known as Gutkha . Some notified goods, raw materials and packing materials totally worth Rs. 15 lakhs required to manufacture such Gutkha were also found lying there, which are seized on 19.09.2013. Both the sides have fairly agreed that said unregistered factory has not followed Rules or paid duty under Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 in respect of 2 pouch packing machines [PPM] found installed at the premises of M/s Laxmi Tobacco Company on 19.09.2013. We find that the Revenue's this ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove, we are of the considered view that there is no clinching tangible evidence or any corroborative evidence against Appellant Shri Paresh R Amin to connect him with actual manufacture and also to establish him as a manufacturer. Thus, Shri Paresh R Amin cannot be treated as the manufacturer liable to duty, interest and penalty in this case. However, the facts of seizure of two PPM found duly installed and goods seized in the premises on 19.09.2013 also have to be considered independently even without the support of any such of statements. It is undisputed fact that the premises where the said two PPM were found installed and raw materials, packing materials and finished goods seized in the premises on 19.09.2013 was actually the premises of the said M/s Laxmi Tobacco Company and it belongs to Shri Purshottambhai C Patel. It is a fact that Shri Purshottambhai Patel has neither produced any rent agreement nor it was found in investigation allowing S/Shri Ashwin P. Patel and Paresh R Amin, said Godown No.3, where two PPM were found installed and the goods were found. It is not acceptable that owner of any premises would allow any third party to enter his premises to carry on busine ..... X X X X Extracts X X X X X X X X Extracts X X X X
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