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TMI Blog2023 (12) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... nd when exact facts in respect of these invoices had not been adduced/adjudicated in the present order. The order in respect of these seven invoices is only made on the basis of surmises and presumptions. The Commissioner has not recorded that the goods that are to be confiscated are excisable goods but he has only expressed his doubt and observed that the unaccounted finished goods are subject to multifarious uses and are leviable to Central Excise duty. In the first part he says these may not be excisable or subject to excise duty as per the facts on record and in the next breath without ascertaining the exact fact and nature of the goods he held them liable for confiscation - It is a settled law that while passing an order for confiscation at least the excisable nature of the goods should have been determined. It is the predetermined mindset of the adjudicating authority whereby he has in respect of these goods without deciding the excisability held the goods to be liable for confiscation. Confiscation cannot be made on the basis of such doubts as expressed by the Commissioner. Thus in the present case the benefit of the doubt which existed in the mind of adjudicating auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is show cause notice are ordered to be dropped. 2.1 The appellant is engaged in the manufacture of Boxes of Duplex Paper board and Varnished printed paper sheets. 2.2 During the course of transit check officers intercepted a three wheeler on which around 6894 sheets of unprinted and laminated duplex paper board were found. In the follow up action the officers visited the factory of the appellant and resumed certain records for further investigation under Panchnama. During the course of the investigation physical verification was undertaken and it was observed that carton/boxes of duplex paper valued at Rs.1,20,861/- and varnished paper sheets at Rs.2,59,065.50/- found in excess in the recorded stock. 2.3 After making further investigation and necessary enquiries a show cause notice dated 24.07.1997 was issued to the appellant asking him to show cause as to why :- i) Unprinted laminated sheets numbering 6984 and valued at Rs.13000.00 which were intercepted on 29.01.97 during transit checking andreized on 30.01.97 should not be confiscated under Rule 1730 (1)(bb). The three wheeler bearing No.UP-14 8 9016 which was also seized on 30.01.97 should not be confiscated und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in assessable value; 5. Art and development charges is includible in assessable value, being part of intrinsic value of the product. 2.7 The matter was taken by the appellant before the Hon ble Supreme Court. The Hon ble Supreme Court vide order dated 27.11.2008 in Civil Appeal No.9731 of 2003 observed as follows:- 1. In this case the CESTAT followed the order passed in the case of Srikumar Agencies who was one of the respondents in Civil Appeal Nos.4872-4892 of 2000 we have set aside the order of CESTAT and remitted the matter to it to be dealt with afresh. The decision in the said case shall apply to the facts of the present case. The appeal will be heard afresh by the appropriate bench of CESTAT. 2.8 In light of the judgment of the Apex Court, Tribunal in the de novo proceedings vide Final Order No 596/09-Cx dated 27.08.2009, remanded the matter back to the Original Authority for deciding the issue afresh on the grounds mentioned in Para 6 of the order as reproduced below:- We have carefully considered the submissions for both sides. The claim of the appellants is that they are manufacturing books and the laminated sheets used as cover are coming at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the client manufactured for job work has been produced in the show cause notice or in the adjudication order. ➢ The demand has been confirmed on the basis of conjectures and presumptions which are not supported by the evidence available on record. ➢ For the reasons as above this demand made in respect of the these seven invoices cannot be upheld; ➢ As regards confiscation of the goods, Adjudicating Authority has himself recorded that there is no evidence available in the record to show that these varnished sheets are either printed varnished sheets to qualify as the products of printing industry under Chapter 49 or packing material eligible to exemption as cartons/ boxes or container; ➢ The only reason which has been stated for confiscation is his inability to determine the exact nature of the product sought to be confiscated from the facts on record. The confiscation should have been done on the basis of the categorical findings with regards to the excisable nature of the goods ought to be confiscated which is lacking in the present case. Hence the confiscation cannot be justified. ➢ No finding has been recorded for imposition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtaken as per the facts involved in the case. Although M/s Neutech have claimed that laminated sheets, prior to lamination were printed paper sheets, for verification of this claim of the party, examination of the invoices issued was necessary. Details of the invoices is contained in Annexure-III to the show cause notice. Invoices detailed in Annexure-III to the show cause notice on examination were found to have been issued to BPB Publications, Sahni Brothers, National Book Trust etc. Perusal of these invoices further reveals that M/s Newtech have issued the invoices for the manufacture of complete books. Towards a job undertaken for manufacture of books, number of copies find mention in the invoices, charges have been collected for plates, printing, binding and lamination. Process of lamination alone is not involved. During the production of books printed sheets have been laminated, which have been further used in making of books. As already discussed in para 10.14, printed sheets, resulting in the making of books are products of printing industry and are exempt. Similarly invoices issued to M/s Hari Darshan Industries and others are either for printed posters or printed packing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... except the seven listed in table above. The basic reason for confirming the demand in respect of these invoices is that these invoices are in respect of processes of lamination only and do not qualify to be in respect of activities that would take the finished products in the category of articles of the printing industry. Appellants contended that in respect of these invoices also processes similar to the processes stated in the other invoices have been undertaken and the process of lamination alone is not involved but various otter processes are involved which make these goods also as goods of the printing industry. On sample basis we perused one of the invoice, in the table above having maximum value i.e. invoice No.95/0034 dated 29.04.1995 against which demand has been confirmed by the Adjudication Authority, available at Page No.128 of the paper-book. 5.4 On perusal of the said invoice we find that the said invoice is in respect of a P O for Atlas Cover . The invoices gives the break up of amounts charged as follows: Processing - 336 sq @ 0.50 168 Add Plates - 4 * 150 1,800 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eviable to Central Excise duty, confiscation of these goods is justified. 5.6 From the perusal of the said para we are of the view that the Commissioner has not recorded that the goods that are to be confiscated are excisable goods but he has only expressed his doubt and observed that the unaccounted finished goods are subject to multifarious uses and are leviable to Central Excise duty. In the first part he says these may not be excisable or subject to excise duty as per the facts on record and in the next breath without ascertaining the exact fact and nature of the goods he held them liable for confiscation. It is a settled law that while passing an order for confiscation at least the excisable nature of the goods should have been determined. It is the predetermined mindset of the adjudicating authority whereby he has in respect of these goods without deciding the excisability held the goods to be liable for confiscation. Confiscation cannot be made on the basis of such doubts as expressed by the Commissioner. 5.7 In case of K I Pavunny [1997 (90) ELT 241 (SC)], Hon ble Supreme Court has observed as follows: 32. It is true that in criminal law, as also in civil suits ..... X X X X Extracts X X X X X X X X Extracts X X X X
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