9911796707
TMI Blog2024 (11) TMI 985X X X X Extracts X X X X X X X X Extracts X X X X ..... ouse No.6, Plot No.21, Golikatta Village, Gudnapura 581 318, Banavasi, Sirsi Taluk Uttara Kannada which was given on rent by the owner of the said premises Shri Dhananjaya Krishna Hegde for a period of one month to the appellant by an understanding recorded on 28.10.2009 was manufactured in the said premises and cleared without payment of duty. The appellant from the very beginning expressed his ignorance about the said labourers and undertaking the manufacture of Gutkha in the said premises. However, no request for cross-examination of the witnesses was requested by the appellant before the adjudicating authority. Neither the appellant nor Mr. Dhananjaya Krishna Hegde, the owner of the said premises has claimed before the authorities that the Gutkha packed in the plastic pouches having mark of Raj Kolhapuri Gutkha belongs to them or the seized machineries have been claimed to belong to them and requested for its release to them. On the other hand, both of them denied being involved in the manufacturing of Gutkha in the said premises. Since duty paid character of the Gutkha has not been established and on the basis of the statements given by the labourers and lorry driver and retri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Excise duty amounting to Rs. 6,37,50,000/- (Rupees six crores thirty seven lakhs fifty thousand only) (consisting of Basic Excise duty, Additional duty of Excise, NCCD, Education cess and Secondary and Higher Education Cess), under Rule 17 (2) of Pan Masala Packing Machines (Capacity Determination And Collection of Duty) Rules, 2008 read with Rule 7 and Rule 9 of the said Rules and Notification No. 42/2008 dated 0 1.07.2008 read with Section 3A of Central. Excise Act, 1944 and proviso to Section 11A(1) of Central Excise Act, 1944 from Shri Pradeep S Naik, Post Kulave, Sirsi, Uttara Kannada -581403. ii) I confirm and demand the interest, as applicable rates, from Shri Pradeep S Naik, on the amount of Central Excise duty quantified at (i) above, under 11 AB of the Central Excise Act, 1944 read with Rule 9 Pan Masala Packing Machines (Capacity Determination And Collection of Duty) Rules, 2008; iii) I confiscate the seized Gutkha packing machines (3 nos.) with the description mentioned as PHOTO ELECTRIC CONTROL valued at Rs.60,000/- each mentioned at Sl.No.2 of the Annexure to the Mahazar dated 09.12.2009. I give an option to redeem the same on payment of fine of Rs. 18000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erials along with three machines and one lorry from unauthorised Gutkha manufacturing unit viz. at House No.6, Plot No.21, Golikatta Village, Gudnapura 581 318, Banavasi, Sirsi Taluk Uttara Kannada within the Banavasi Police Station limit on 03.11.2009. On the basis of FIR and Mahazar drawn by the Police, the Central Excise Department made an application on 06.11.2009 before the Hon ble Principal JMFC, Sirsi seeking transfer of the seized goods and lorry so as to initiate further investigation in the matter under Central Excise Act, 1944. By order dated 30.11.2009, the court directed the Police to hand over the goods and lorry seized on 03.11.2009 to Central Excise Department. Consequently, the Police handed over the seized materials along with lorry bearing Registration No. DN 09/F 9111 to the Central Excise Department on 09.12.2009. In taking possession of the seized goods and lorry, the Central Excise Department once again seized the same under Central Excise Act under mahazar dated 09.12.2009 and initiated investigation in the matter. 2.2. It is noticed by the officers on investigation that pan masala containing Tobacco popularly known as Gutkha , an excisable commodity falling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as: a. 90 Blue colored bags unloaded from the Lorry bearing Registration no.DN-09/F-9111. Each Blue colored bag contained 06 plastic packs and each such plastic pack contained 17 plastic packets and in such plastic packet there were 3 packets and there were 68 small packets with Raj Kolhapur Gutka printed on it with rate mentioned as Rs.1/-. Total value of Gutkha was approx. Rs.18,70,000/-. b. Lorry bearing Registration no.DN-09/ F-9111 valued at Rs.4,00,000/- 3 nos of blue colored plastic bags value Rs.300/- c. 3 Nos of alleged to be Gutkha manufacturing machines each valued at approx. 60,000/- d. half-filled bag with raw materials like arecanut and other mixtures and other miscellaneous packing materials and plastic materials of NIL value. Later, the Central Excise Department with the permission of the Hon ble Principal JMFC, Sirsi got the goods transferred by order dated. 30.11.2009 and again seized the goods and lorry under Mahazar dated 09.12.2009. in the Police mahazar dated 03.11.2009, it was mentioned the premises from where the machines and lorry were seized. 4.2. The summary of submissions of the learned advocate assailing the impugned order confirming demand of duty and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d tamper proof; hence cannot be relied upon. ➢ Duty demand confirmed based on inadmissible documents and Mahazars i.e. Police Mahazar dated 03.11.2009 or any material document relating to Police investigation as recorded in the impugned order. ➢ The identity of the seized goods in the Police Mahazar was not established. ➢ Appellant s connection with the premises from where the goods were seized and the act of manufacture was not established. ➢ The impugned order is based on the alleged letter dated 28.10.2009 written by the appellant to the owner of the premises in which the alleged Gutkha, machineries and other materials and vehicles were seized by the Police under Mahazar dated 03.11.2009. The adjudicating authority has rightly observed that nobody can provide the premises on rent for one month without any agreement and fixing rent. ➢ The actual manufacturer of the Gutkha, the proprietor of M/s. Shree Ganesh Industries, Sirsi was not made as part to the proceeding despite evidence against him. 6. Learned AR for the Revenue reiterated the findings of the learned Commissioner. 7. Heard both sides and perused the records. 8. The issues involved in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undertaking the manufacture of Gutkha in the said premises. However, no request for cross-examination of the witnesses was requested by the appellant before the adjudicating authority. Neither the appellant nor Mr. Dhananjaya Krishna Hegde, the owner of the said premises has claimed before the authorities that the Gutkha packed in the plastic pouches having mark of Raj Kolhapuri Gutkha belongs to them or the seized machineries have been claimed to belong to them and requested for its release to them. On the other hand, both of them denied being involved in the manufacturing of Gutkha in the said premises. 10. Since duty paid character of the Gutkha has not been established and on the basis of the statements given by the labourers and lorry driver and retrieving the three machineries from the manufacturing premises, it is clear that the said Gutkha bearing name Raj Kolhapuri manufactured in the said premises and cleared without following procedure and discharging duty payable on the same. Consequently, the Gutkha as well as the three packaging machines and other related materials seized by Police on 03.11.2009 and later by Central Excise Department on 09.12.2009 are liable for conf ..... X X X X Extracts X X X X X X X X Extracts X X X X
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