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TMI Blog2024 (12) TMI 343X X X X Extracts X X X X X X X X Extracts X X X X ..... re receiving the payment by cheque. Undisputedly the searches were conducted at various location including the factory premises of the Appellant 1, and various residential premises owned by them and their Directors i.e. Appellant 2 and Appellant 3. Searches were also conducted at the premises of the agent of transporter booking the consignments of appellant 1 and also at the premises of the transporter namely Ghatg Patil Transport Company. The document issued in the name of fake entity were accompanied with the transport documents prepared by the Ghatge Patil Transport Company, and there were no transport documents in respect of the invoices issued in name of Appellant 1. Investigations revealed that the invoices were issued in the name of appellant were to cover up the transport of the goods to the godown of transporter and were taken back by the booking agent, Appellant 4 and from the transporter godown goods were transported on the documents issued in the name of fake company along with the transport documents prepared by the transporter M/s Ghatge Patil Transport Company. It is evident that the all the threads necessary to establish the case of clandestine clearance have been i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ER (JUDICIAL) AND HON BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Shri S.D. Gaur, Consultant For The Appellants Shri Tuleshwar Prasad, Authorised Representative Shri Santosh Kumar, Authorised Representative For The Respondents FINAL ORDER SANJIV SRIVASTAVA: These appeals are directed against ORDER-in-ORIGINAL No. 32 /COMMR/ NOIDA-1/2015-16 dated- 30.11.2015 of the Commissioner, Central Excise, Noida-I. By the impugned order following has been held:- ORDER 1. (a) I, confirm the demand the CENVAT credit amounting to Rs. 59,225/- (Rs. Fifty nine thousand two hundred twenty five) from M/s Pankaj Tobacco Private Limited A90, Sector-63, Noida, under Rule 14 of Cenvat Credit Rules, 2004 read with Section 11A (10) of the Central Excise Act, 1944; (b) I, order for recovery of interest from them under Rule 14 of Cenvat Credit Rules, 2004 read with Section 11AA of the Central Excise Act, 1944. (c) I, impose a penalty of Rs 59,225/- (Rs. Fifty nine thousand two hundred twenty five) upon them under Rule 15 of Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944 2. (a) I, confirm the demand of duty of Rs. 75153/- (Rs. Seventy five thousand one hundred fifty three) f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s Om Roadways Corporation, Main Noida Dadri Road, Salarpur. Bhangel,Nr. Police Station, Phase II, Noida under Rule 26 of the Central Excise Rules, 2002 9. I, impose a penalty of Rs 5,00,000/- (Rs. Five lacs only) upon Shri Deepak Sharma son of Shri Yogendra Sharma, proprietor of M/s Om Transport Co under Rule 26 of the Central Excise Rules, 2002 10. I impose a penalty of Rs 10,00,000/- (Rs. Ten Lacs only) upon M/s Ghatge Patil Transport, C-9, SMA Industrial Area, Jhangirpuri, Deihi, under Rule 26 of the Central Excise Rules, 2002 11. I impose a penalty of Rs 2,00,000/- (Rs. Two lacs only) upon Shri B. S. Kothawale Proprietor of M/s Sri Siddheswar Traders, Shop-11, Kumbharwar Shopping Centre Solapur, Maharashtra, under Rule 26 of the Central Excise Rules, 2002 12. I, impose a penalty of Rs 2,00,000/- (Rs. Two lacs only) upon Shri H. M. Kasar Proprietor of M/s Shree Sai Agencies, 299, Satakar Chal, Mangalwar Peth, Sangli Madhavnagar, Maharashtra, under Rule 26 of the Central Excise Rules, 2002 13. I, impose a penalty of Rs 2,00,000/- (Rs Two lacs only) upon Shri Manoj Kumar Patil Proprietor of M/s Siddaram Traders, Shah Peth. Bijapur, Karnataka, under Rule 26 of the Central Excise R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the officers physically verified the stock of the finished excisable goods lying in the factory premises of the party, as detailed in the Annexure B of the Panchnama dated 11/12.4.2012. During the verification, stock of finished goods, raw materials, certain discrepancies were noted. On the basis of reasonable belief that the improper accountal of such excess stock was for the purpose of unaccounted manufacturing and clandestine ciearances of the finished excisable goods, in contravention to Rule 10 of Central Excise Rules 2002, with the intention to evade Central Excise Duty due thereon, the said goods (i.e. 102 Kg. of Aradhna Zafrani Patti No. 311 of 50 gms. contained in 10 Cartons and 85.26 Kg. of Aradhna Zafrani Patti No 311 of 200 gms. contained in 21 Cartons) were seized under Section 110 of Customs Act, 1962 as made applicable to Section 12 of Central Excise Act 1944 read with Rule 24 of Central Excise Rules, 2002 vide Seizure Memo dated 12.4.2012 and were handed over to Shri Pradeep Kumar, Director, for keeping the said goods in safe custody under Supurdnama dated 12.04.2012. 2.4.2 The physical verification of the stock of packing material was also conducted by the offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 11.04.2012. was also drawn of the proceedings conducted. 2.7 The residential premises at E-2, Sector-55, Noida was searched by the officers on 11.04.2012, however nothing incriminating was found 2.8 Premises of M/s Hariom Krishna Transport Company, Harola Market Sector 5, Noida -A follow up action was also initiated at local office of M/s G.G.Carrier, Agra Road, Jaipur situated at Harola Market, Sector 5, Noida on 13.04.2012. Th above address was identified during the search of the Residential premises at 1-23, Sector-12, Noida by the officers on 11.04.2012 wherein copies of 6 (six) GRs issued by M/s G.G.Carrier, Agra Road, Jaipur were resumed. It was observed that M/s Hariom Krishna Transport Company, Harola Market, Sector-5, Noida was acting as an agent of M/s G.G.Carrier. There were no premises of M/s G.G. Carrier. A Panchnama dated 13.04.2012 was also drawn of the proceedings conducted and statement of Shri Rajneesh Kumar Trehan, owner of M/s Hariom Krishna Transport Company was also recorded under section 14 of the Central Excise Act, 1944 2.9 Appellant 1 vide letter Ref. No. 003/12-13 dated 30.4.2012 had intimated that they had deposited an amount of Rs. 5,00,992/- as pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, he did not have any knowledge about the whereabouts of Shri J.K. Dua the old tenant; that, no rent agreement was signed by Shri Pradeep Kumar Arya with him and the rent was received in cash. 2.13 Appellant 3 in his statement dated 07.03.2013 stated that they manufacture Gutkha i.e. Pan masala containing tobacco; that, the ingredients or raw material used in manufacture of Gutkha are Supari, Kattha, Menthol, Lime, Tobacco, Spices and Fragrances; that, they had never used Magnesium Carbonate in manufacture of Gutkha in factory; that, they had never purchased Magnesium Carbonate for their factory; that, they had never manufactured pan masala in their factory; that, they did not use any anti caking material as they use paper foil aluminium coated for packing of their finished goods; that, they purchase high quality katthaa and mix with lime to maintain whiteness in the product. 2.14 On 17.04.2013. on the basis of specific information received regarding the clandestine removal of 'flavoured Chewing Tobacco' by PTPL, a team of officers of Anti Evasion branch of Central Excise, Commissionerate Noida was put on surveillance near Padam Petrol Pump, Sector-63, Noida to intercept a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Hyderabad for sale of 13 cartons of manufactured tobacco valued at Rs. 53,352/- respectively. These bills/Cash Memos were also accompanied with Bilty / Way Bill No 2416335, 2416333 and 2416334 all dated 17.04.13 issued by M/s Ghatge Patil Transport Ltd., H.O. 517-E, Pune- Bangalore Road, Kolhapur. Apart from the aforesaid papers, driver Shri Umesh Yadav could not produce any valid Central Excise duty paying documents 2.15.3 Further, on verification of Flavoured Chewing Tobacco/ Zarda loaded on the truck it revealed that out of the 63 cartons 13 cartons were of Aradhna Brand Tobacco Special-311, each carton having 20 packets and each packet contained 10 tin containers i.e. total 13*20*10 = 2600 tin container (each of 50 gms. of M.R.P. Rs. 85/-), total M.R.P. Rs. 2,21,000/-, after abatement of 55% Ass. Value Rs. 99,450/- 50 cartons were of Aradhna Brand Zafrani Patti No. 311 Super pouch, each carton having 20 packets and each packet contained 11 pouches i.e. total 50*20*11 11000 pouches (each 50 gms. M.R.P. Rs. 63/-). Total M.R.P. Rs. 6,93,000/-, after abatement of 55% Ass. Value Rs. 3, 11,850/- Total 63 cartons of flavoured chewing tobacco, involving total Assessable Value of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also seized on the reasonable belief that the same was liable to confiscation under section 115 of Customs Act, 1962 as made applicable to Central Excise matters vide Notification No. 68/63 dated 04.05.1963. The seized goods and the vehicle/truck Swaraj Mazda Registration No. UP-16 E-4970 were handed over to Shri Neeraj Kumar, Authorised Signatory of M/s PTPL for safe custody under Supurdnama dated 17.04.2013 2.16.2 During search, stock of raw material and packing material was also taken and on reconciliation details as per the statement Appellant 5 dated 23rd April, 2013, shortage in the stock of raw material and packing material was observed. 2.17 The follow up search operations were conducted at the premises of M/s Ghatge Patil Transport, C-9, SMA Industrial Area, Jhangir puri, Delhi in the presence of Shri Kanwar Singh Yadav, Branch Manager of M/s Ghatge Patil Transport, C-9. SMA Industrial Area, Jehangir puri, Delhi on 18.04.2013 as they were concerned with transporting clandestine finished goods manufactured and cleared by M/s PTPL. Search of the premises resulted in recovery of two consignments of flavoured chewing tobacco of Aradhna Brand Zafrani Patti No. 311 Super of 20 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 311 valued at Rs. 2,49,480/- involving Central Excise duty of Rs. 1,95,293/- manufactured by M/s PTPL that were seized at the premises of M/s Ghatge Patil Transport, C-9, SMA Industrial Area, Jhangir puri, Delhi under Panchnama dated 18.04.2013. 2.18.3 Appellant 6 vide letter dated 23.04.2013 requested for provisional release of vehicle/truck Swaraj Mazda Registration No. UP-16 E-4970 valued at Rs. 1,50,000/- which was seized along with 63 cartons of Flavoured Chewing Tobacco near Padam Petrol Pump, Sector-63, Noida under Panchnama dated 17.04.2013. 2.18.4 The request for provisional release was allowed by the Additional Commissioner (Pc Div-II), Central Excise, Noida vide the Provisional Release Order issued under C.No. IV- CE(9)CP/N/65/13/728 dated 03.05.2013 (RUD-31) on furnishing of B-11 (Security) Bond for Rs. 6,60,780/- (for the seized goods) and Rs. 1,50,000/- (for the seized vehicle) along with Fixed Deposit for Rs. 1,65,195/- and Rs. 37,500/- respectively. 2.18.5 A seizure show cause notice vide C. No. IVCE(9)CP/N/65/13/ 1538-1544 dated 09.10.2013 was issued to M/s PTPL for confiscation of 63 cartons of Flavoured Chewing Tobacco and Zafrani Patti valued at Rs 4,11,300/- se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bills of either M/s PTPL, Noida or M/s Vishwakarma Trading Company, Bhardwaj Market, Near Water Tank, Barola, Noida-II, M/s Rishabh Trading Company Noida, M/s Pooja Traders, Noida and M/s Aamir Enterprises, Noida; the GRs / Way bills submitted by M/s Ghatge Patil Transport Limited, Delhi pertains to the consignments of Tobacco / Zarda booked on the bills of M/s Vishwakarma Trading Co. Noida, M/s Rishabh Trading Co. Noida, M/s Pooja Traders, Noida and M/s Aamir Enterprises Noida- which were cleared clandestinely from the factory of Appellant 1; GRs /way bills submitted by M/s Ghatge Patil Transport Ltd, Delhi on which finished goods manufactured by M/s PTPL, Noida, were cleared without payment of duty pertain to the period January, 2012 to April 2013. During this period they were packing 200 Tin containers of 50 gms each of MRP Rs. 85 in each carton and 220 pouches of 50 gms. each of MRP Rs. 63 were packed in each carton; the Aradhna Brand Zarda cleared by us are in Tin containers of 50 gms but the customers like Amit Agency / Trading, Aurangabad Bharat Trading, Hyderabad, Siddaram Traders, Bijapur, and Modern Tobacco/ Zarda, Latur have always purchased Aradhna Brand Zarda chew ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of 325 kgs., whereas the qty. of 1375 kgs. of such goods was non cenvatable. They had availed the Cenvat credit of Rs. 57,500/+Rs 1150/-+ Rs. 575/- =Rs. 59,225/- vide RG23A Pt.-II E/No.1 dated 10.02.2012 on 325 Kgs. of the raw material Flavors' found short 2.25 Accepting the facts of manufacture and clandestine removal of goods without payment of Central Excise duty, PTPL deposited Rs.48,26,992/- vide the following e- payment Challans against their liability Sr. No Challan No. Date Amount (in Rs.) 1 02005293004201200068 30.04.2012 5,00,992/- 2 02005293012201300142 30.12.2013 10,00,000/- 3 02005291001201400092 10.01.2014 8,00,000/- 4 02005291501201400049 15.01.2014 15,26,000/- 5 02005292662201400059 26.02.2014 10,00,000/- Total 48,26,992/- 2.26 Thus, it is evident that Appellant 1 was suppressing the production and clandestine removal of finished goods in a well planned and systematic manner with intent to evade payment of Central Excise duty. On scrutiny of the seized records, confessional statements of various persons including the Directors and employees of the company their transporters and buyers, it appears that PTPL adopted a well planned modus operandi for evasion of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 02.02.2015 was issued to the appellant 1 asking him to show casue as to why: 1. (a) The CENVAT credit amounting to Rs. 59,225/(including Ed. Cess Higher Ed. Cess) involved on the raw material (flavors and saffrons) found short during physical stock taking of raw materials at the factory premises at A90, Sector-63 Noida, on 11/12.04.2012, should not be recovered from them under Rule 14 of Cenvat Credit Rules, 2004 read with Section 11A (4) of the Central Excise Act, 1944 (b) Interest should not be demanded from them under Rule 14 of Cenvat Credit Rules, 2004 read with Section 1 IAA of the Central Excise Act, 1944, and Penalty should not be imposed upon them in terms of Rule 15 of Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944 2. (a) The duty amounting to Rs. 75153/-(including NCCD, AED, Ed. Cess Higher Ed. Cess) involved on the excisable goods namely Scented Patti found short during physical stock taking in the factory premises at A-90, Sector- 63, Noida on 11/12.04.2012, should not be demanded from them under Section 11A(4) of the Central Excise Act, 1944 (b) Interest should not be demanded from them under Section 11AA of the Central Excise A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned order as made by the learned commissioner it is not clear except S.No.1 on what goods demand has been confirmed. In respect of Cenvat Credit amounting to Rs. 59,225.00 it was submitted that inputs involved were used in manufacturer of final products and were never cleared out of factory. This mistake was clerical and there is no evidence to established that the input was ever cleared out of factory. The demand made is not proper and demand of interest is not justified and penalty imposed is not justify and legal. In respect of demand of Rs. 75153.00 it was submitted that scented patti on which demand appears to be made and found short is not proper reasonable correct. As scented patti was lying in the intermediary stage of production. The goods under question are not final product, therefore demand of duty of such goods is not proper justified. The order for interest and imposition of penalty is not justified legal. The demand of Rs. 2,29,955.00 made on the basis of copies of GR's found at residential premises at I-23, Sector-12, Noida is also not correct justified. From the perusal of copy of GR's it is seen that 5 out of 6 are for Masala and 1 for Tambaku, there is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cided in the present case are as under: (i) whether the CENVAT credit amounting to Rs. 59,225/- involved on the raw material (flavors and saffrons) found short is recoverable from M/s Pankaj Tobacco Pvt. Limited under Rule 14 of Cenvat Credit Rules, 2004 read with Section 11A (4) of the Central Excise Act, 1944, interest is demandable from them under Rule 14 of Cenvat Credit Rules, 2004 read with Section 1 IAA of the Central Excise Act, 1944, Penalty is imposable upon them in terms of Rule 15 of Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944 (ii) whether the duty amounting to Rs. 75153/- involved on the excisable goods namely Scented Patti found is recoverable from M/s Pankaj Tobacco Pvt. Limited under Section 11A(4) of the Central Excise Act, 1944, interest is demandable from them on the above under Section 11AA of the Central Excise Act, 1944, and Penalty is imposable upon them in terms of Rule 25 of the Central Excise Rules, 2002 read with Section 11AC of the Central Excise Act, 1944 (iii) whether duty amounting to Rs. 2, 29,955/- on the goods cleared ciandestinely related to the GRs is demandable from M/s Pankaj Tobacco Pvt. Limited under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excisable goods lying in the factory premises of the party. Stocks of the finished goods namely `Aradhna' zafrani patti No. 311 of 50 Gms. W. K., `Pritam' No. 319 (50Gms) Scented patti, `Rajkiran Quiwam' (50Gms) scented patti and 'Kiran' No. 06 scentedpatti were found short by 11.800 Kgs, 27.900 Kgs, 2.730 Kgs and 449.75 Kgs respectively, involving Central Excise duty of Rs. 75129/ (i.e. Rs. 6544/- +10444/- +1811/-+56330/ respectively) The physical verification of the stock of raw material/packing material was also conducted by the officers. I find that the goods were not verifiable vis-a-vis book balance as the party was not maintaining any stock account of packing materials, the stock of packing material, i.e. empty tin containers. The input goods namely Raw tobacco was found short oy 5449.74 Kg valuing Rs. 3,26,984/- as per last bill of procurement Similarly flavours and saffron were found short by 1661.505 Kg. and Spice Herbs were found short by 1620.278 Kg, value of the same could not be ascertained as PTPL had not maintained variety wise entries in the stock register. I find that M/s PTPL vide their letter dated 16.12.2014 admitted the shortage of raw mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed at A-90, Sector 63,Noida is recoverable from PTPL under Rule 14 of Cenvat Credit Rules, 2004 read with Section 11A(4) of the Central Excise Act, 1944 along with interest. 3. During the search of the Residential premises situated at 1-23 Sector-12, Noida by the officers on 11.4.2012, which belongs to Shri. Pradeep Kumar Arya Director of PTPL, copies of 6 (six) GRs bearing serial Nos.14514, 14515, 14516 and 14517 all dated 20.02.2012 (in original), 14505 dated 15.02.2012 and 14508 dated 16.02.2012 (both in Xerox copies) issued by M/s G.G.Carrier, Agra Road, Jaipur were recovered. A follow up action was initiated at local office of M/s G.G Carrier, Agra Road, Jaipur situated at Harola Market, Sector 5, Noida on 13.04.2012. It was observed that M/s Hariom Krishna Transport Company Harola Market, Sector-5, Noida was acting as an agent of M/s G.G Carrier. There were no premises of M/s G.G.Carrier. Shri Om Prakash Supervisor of PTPL, stated that the GRs, were issued for dispatch of Pan Masala cartons from the factory premises of PTPL to Bangalore. Those SRs were issued by M/s Hariom Krishna Transport Company, Noida to M/s Krishna Pan House, Bangalore. He further stated that M/s Hariom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the premises of PTPL on the instruction of Shri Pradeep Kumar Arya, Director of PTPL. Further, I find that Shri Rajneesh Kumar Trehan, owner of M/s Hariom Krishna Transport Company on seeing the 6 No.s of GRs, stated that masala was transported vide those 6 GRs. He further stated that he had sent Pan Masala on these GRs from M/s Hariom Traders, Noida to M/s Krishna Pan House, Bangalore. I see no motive in the statements of Shri Om Prakash, Supervisor of PTPL who having been the supervisor of PTPL, has the first hand knowledge about the goods. Above admission of Shri Om Prakash negates PTPL's contention that there is no evidence that the goods related to above GR's have been manufactured by them. Further PTPL's request for cross examination of transporter and consignee is not acceptable for the reasons that the person who has been looking after the affairs of the factory and owner of the transport company has stated the obvious. Further,. Shri Pankaj Arya fully agreed with the statement of Shri Om Prakash and put his dated signature on the statement in token of his agreement; he also admitted that the said finished goods were cleared clandestinely from their factory p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Bazar, Hyderabad for sale of 13 cartons of manufactured tobacco valued at Rs. 53,352/- respectively. These bills/Cash Memos were also accompanied with Bilty / Way Bill No 2416335, 2416333 and 2416334 all dated 17.4.13 issued by M/s Ghatge Patil Transport Ltd., H.O. 517-E, Pune-Bangalore Road, Kolhapur. Apart from the aforesaid papers, driver Shri Umesh Yadav could not produce any valid Central Excise duty paying documents (iii) Further, on verification of Flavoured Chewing Tobacco/ Zarda loaded on the truck it revealed that out of the 63 cartons - 13 cartons were of Aradhna Brand Tobacco Special-311, each carton having 20 packets and each packet contained 10 tin containers i.e. total 13*20*10 = 2600 tin container (each of 50 gms. of M.R.P. Rs. 85/-), total M.R.P. Rs. 2,21,000/-, after abatement of 55% Ass. Value Rs. 99,450/- 50 cartons were of Aradhna Brand Zafrani Patti No. 311 Super pouch, each carton having 20 packets and each packet contained 11. pouches i.e. total 50*20*11 = 11000 pouches (each 50 gms. M.R.P. Rs. 63/-). total M.R.P. Rs. 6,93,000/-, after abatement of 55% Ass. Value Rs. 3, 11,850/-. Total 63 cartons of flavoured chewing tobacco, involving total Assessable Val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 Gms and 200 Gms 59579 in No 5,56,178/- 68744/- 2 Raw Tobacco 2495 Kgs 1,53,630/- 3 Essence Flavors 2137.171 Kgs 8,75,510/- 1,08,213/- 4 Spices 269.227 Kgs 32,216/- 3982/- 5 Silver foil 0.425 Kgs. 24,969/- 3086/- TOTAL 184025/- (vii) I find that during the follow up search operations of M/s Ghatge Patil Transport, C-9, SMA Industrial Area, Jhangirpuri, Delhi two consignments of flavoured chewing tobacco of Aradhna Brand Zafrani Patti No. 311 Super of 20 cartons each were recovered. Shri Kanwar Singh Yadav, Branch Manager of M/s Ghatge Patil Transport informed that the said consignments were booked by Shri Yogendra Kumar Sharma, Proprietor of M/s Om Roadways Corporation, Main Noida Dadri Road, Salarpur, Bhangel, Nr. Police Station, Phase II, Noida. Shri Kanwar Singh Yadav further produced Bill/Cash Memo Nos. 311 312 both dated 15.4.13 issued by M/s Vishwakarma Trading Co. Bhardwaj Market, Barola, Noida along with respective Billy/Way Bill Nos. 2416326 2416327 both dated 15.4.13. The verification of the consignments revealed that each carton contained 20 packets, each packet contained 11 pouches of Aradhna Brand Zafrani Patti, total 8800 pouches (40*20*11) each of M.R.P. Rs. 63/-, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at all work related to his transport company was looked after by his son Shri Deepak Sharma. Shri Deepak Sharma admitted that they were booking agent for M/s Ghatge Patil Transport Ltd. and that for booking of goods they were supplied Bilty Book and Challan Book by M/s Ghatge Patil Transport. 1 find that Shri Deepak Sharma also admitted that papers pertaining to said the 63 cartons of flavoured chewing tobacco which were seized along with the truck having Registration No. UP-16E/4970 on 17.4.13 were given to him by Shri Neeraj Kumar, Authorised Signatory of M/s PTPL; that the said papers contained Invoices of M/s PTPL as well as of M/s Vishwakarma Trading Co; that on the basis of said papers he prepared Bilties and handed over the same to Shri Umesh Yadav, Driver of the vehicle. Shri Deepak Sharma also stated that he used to take back the bills of M/s PTPL in transit from the driver of the vehicle for returning the same to Shri Neeraj Kumar and the goods were further transported on the bills of M/s Vishwakarma Trading Co. Shri Deepak Sharma also stated that sometimes booking was on the papers of M/s PTPL also but he had no knowledge whether the same were Excise Invoices or not. Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... da received on the bills of M/s PTPL, Noida, were made mostly through cheque and draft. The payments in respect of cnsignment of Zarda received on the bills of M/s Vishwakarma Trading Co. were made in cash to Shri Neeraj Kumar or to Shri Pankaj Kumar Arya of M/s PTPL; that he also confirmed that they always purchased Aradhana Brand Zarda manufactured by M/s PTPL, Noida in Tin containers of 50 gms both on bills and without bills. After being shown way bills / bilties No. 2416297 dated 23.03.2013 and bills / bilties No.2416227 dated 18.02.2013 as submitted by M/s Ghatge Patil Transport Ltd., reflecting details of Zarda consignments transported by them on the bills of M/s Vishwakarma Trading Co., Noida, and statements of Shri Neeraj Kumar dated 23.04.2013, he confirmed the consignments related to them and agreed with the statements of Shri Neeraj Kumar (xiii) Shri M.D. Kasar, Proprietor of M/s Shree Sai Agencies submitted that his firm used to purchase Aradhna Brand Zarda manufactured by M/s PTPL, Noida, both on bills and without bills. The unaccounted consignments of Aradhna Brand Zarda were delivered to them at Madhavnagar on the bills of M/s Vishwakarma Trading Company, through tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts related to them and agreed with the statements of Shri Neeraj Kumar. (xv) Shri Shrinivas Hegde, Propreitor of M/s Vishal Enterprises submitted that his firm used to purchase Aradhna Brand Zarda manufactured by M/s PTPL, Noida, both on bills and without bills. The unaccounted consignments of Aradhna Brand Zarda were delivered to them at Hubli on the bills of M/s Vishwakarma Trading Company, through transport M/s Ghatge Patil Transport Ltd. The payments in respect of consignment of Zarda received on the bills of M/s PTPL, Noida, were made mostly through cheque but occasionally: it was made in cash also. The payments in respect of consignment of Zarda received on the bill's of M/s Vishwakarma Trading Co. was made in cash only to Shri Neeraj Kumar or to Shri Pankaj Kumar Arya of M/s PTPL; that he also confirmed that they always purchased Aradhana Brand Zarda manufactured by M/s PTPL, Noida in Tin containers of 50 gms both on bills and without bills. After being shown way bills / bilties No. 7174916 dated 07.03.2013 and bills / bilties No.7174682 dated 12.12.2012, 7174683 dated 13.12.2012, 7174684 dated 15.12.2012 as submitted by M/s Ghatge Patil Transport Ltd., reflecting detail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acco / Zarda booked on the bills of M/s Vishwakarma Trading Co. Noida, M/s Rishabh Trading Co. Noida, M/s Pooja Traders, Noida and M/s Aamir Enterprises, Noida which were cleared clandestinely from the factory of M/s PTPL, A-90, Sector-63, Noida; that GRs May bills submitted by M/s Ghatge Patil Transport Ltd, Delhi on which finished goods manufactured by M/s PTPL, Noida, were cleared without payment of duty pertain to the period January, 2012 to April 2013. During this period, they were packing 200 Tin containers of 50 gms each of MRP Rs. 85, in each carton and 220 pouches of 50 gms, each of MRP Rs. 63, were packed in each carton; the Aradhna Brand Zarda cleared by them are in Tin containers of 50 gms but the customers like Amit Agency / Trading, Aurangabad, Bharat Trading, Hyderabad, Siddaram Traders, Bijapur, and Modern Tobacco/ Zarda, Latur have always purchased Aradhna Brand Zarda chewing tobacco in 50 gms pouch only; that he agreed that all the persons i.e. M/s Sri Siddheshwar Traders, shop No. 11, Kumbharwar shopping centre, Solapur, M/s Shree Sai Agencies, 299, Satakar Chal, Mangalwar Peth, Madhavnagar, Sangli, M/s Siddaram Traders, Shah Peth, Bijapur, M/s Vishal Enterprises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding packing materials use for the manufacture of the goods which were cieared without payment of duty and in the-absence of manufacture of goods, demand of duty not justified. The party has submitted that document recovered from third party not admissible in reliable evidence without proper corroboration as to extra raw material procured or financial transaction. It has been submitted that the documents were not recovered from the factory of the notice and the onus to show the noticee cleared the goods under cover of those documents lies on the revenue. It has been submitted that there is nothing in the S.C. Notice to show that the goods alleged to be clandestinely removed were cieared from the factory of the Noticee. The party cited some cases in their favour (xx) (a) I find that the 63 cartons (13 cartons of Aradhna Brand Tobacco Special- 311 50 cartons of Aradhna Brand Zafrani Patti No. 311 Super pouch), of total Assessable Value of Rs. 4,11,300 involving central excise duty amounting to Rs. 3,21,965/- has been seized along with truck no. UP-16E /4970. The driver of the truck confirmed the goods were loaded from the premises of PTPL. The verification of the name of manufacturer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sai Agencies, Shri Manoj Kumar Patil, Proprietor of M/s Siddaram Traders, Shri Shrinivas Hegde, Proprietor of M/s Vishal Enterprises, Shri N.G. Mohan, Proprietor of M/s Shri Ram Stores confirmed that they have received consignments of unaccounted consignments of Aradhna Brand Zarda from PTPL. The payments in respect of above consignment of Zarda was made in cash only to Shri Neeraj Kumar or to Shri Pankaj Kumar Arya of M/s PTPL. I find that Shri Pankaj Arya, Director M/s PTPL, confirmed that the GRs / Way bills submitted by M/s Ghatge Patil Transport Limited, Delhi pertains to the consignments of Tobacco / Zarda booked on the bills of M/s Vishwakarma Trading Co. Noida, M/s Rishabh Trading Co. Noida, M/s Pooja Traders, Noida and Ms Aamir Enterprises, Noida which were cleared clandestinely from. the factory of M/s PTPL, A-90, Sector 63, Noida, without payment of duty during the period January, 2012 to April 2013. I find that he had seen the quantification chart and admitted with the duty liability amounting to Rs. 1,50,02,965/- for the period December, 2012 to April 2013. l find that PTPL admitting the duty liability, had deposited Rs. 43 Lakhs till 19.12.2014. (c) I find that the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corroborated by the buyers and the transporter. The onus in respect of above has been discharged by the department. (d) I find that the cases cited by the party is distinguishable from the instant case for the reason that the cases cited by the party related to demand raised only on the basis of evidence from the transporter or third party without any corroborative evidence whereas in the instant case the evidences collected from third party have been corroborated by the transporter who has transported goods from the factory of the party to M/s Ghatge Patil and by the authorized signatory who has been dealing with the manufacture and clearance of excisable goods, by the director of the party looking after the affairs of the party and by the buyers of the excisable goods. i find that different legal for as have held repeatedly that: Realizing the difficulties faced by investigating agencies in gathering evidences in a modern, technologically advanced times, the Hon'ble Supreme court has held that (the prosecution) was not required to meet every hypotheses put forward by the accused - Bhagwan Das V/s State of Madhya Pradesh (2002) 4 SC 85. In the same judgment, the Hon'ble co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the company, their transporters and buyers, it is clear that PTPL adopted a well planned modus operandi for evasion of Central Excise duty. The excisable goods manufactured in the factory of PTPL were clandestinely removed and transported to M/s Ghatge Patil Transport, Delhi with the help of M/s Om Road ways Corporation, Noida without payment of duty. They managed the booking of the offended goods on the basis of fabricated bills either of PTPL or of non existence firms like M/s Vishwakarma Trading Company Noida, M/s Rishabh Trading Company, Noida, M/s Pooja Traders, Noida and M/s Amir Enterprises, Noida. They also managed the transaction of their sale proceeds by way of cash transactions with their buyers. I find that M/s PTPL have been suppressing their production and clearing their finished goods clandestinely. The detection of shortage of raw materials and packing materials clearly substantiate the charges of unaccounted production and their clandestine clearance. It is evident that M/s PTPL was not in a position to explain the shortages of raw material and their packing materials. The seizure of two consignments outside the factory premises clearly indicates that they have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Zarda; that, the two consignments o Aradhna Brand flavoured chewing tobacco of 20 cartons each (Total 40 cartons) seized on 18.04.2013 from the premises of M/s Ghatge Patil Transport, C-9, SMA Industrial Area, Jhangirpuri, Delhi covered under the bills of M/s Vishwakarma Trading Co., Bhardwaj Market, Barola, Noida were also manufactured and cleared from M/s PTPL without issue of excise invoice. (ii) It is evident that the finished excisable goods manufactured by PTPL were booked on the bills of either of M/s Pankaj Tobacco Pvt Ltd, Noida or M/s Vishwakarma Trading Company, Noida, M/s Rishabh Trading Company, Noida M/s Pooja Traders, Noida and M/s Amir Enterprises, Noida. M/s PTPL had adopted a modus-operandi to the effect that they cleared the goods under the cover of fake tax / sale invoice of PTPL with bill /cash memo of 'non existent films like M/s Vishwakarma Trading Company, Noida, M/s Rishabh Trading Company, Noida M/s Pooja Traders, Noida and M/s Amir Enterprises, Noida. The goods cleared clandestinely were accompanied with these documents and in the transit the fake tax/ sale invoices were destroyed and the bill/ cash memos of non existent firms were used for further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind that PTPL is liable for penalty in terms of Rule 25 of the Central Excise Rules, 2002 read with Section 11AC of the Central Excise Act, 1944 6. I find that copies of 6 (six) GRs bearing serial Nos.14514. 14515,14516 and 14517 all dated 20.02.2012 (in original), 14505 dated 15.02.2012 and 14508 dated 16.02.2012 (both in Xerox copies) issued by M/s G.G.Carrier, Agra Road, Jaipur were recovered from the Residential premises situated at 1-23, Sector-12, Noida which belongs to Shri Pradeep Kumar Arya Director of PTPL. I find that Shri Om Prakash. Supervisor of PTPL, stated that the GRs, were issued for dispatch of Pan Masala cartons from the factory premises of PTPL to Bangalore; that, those goods were manufactured by PTPL and cleared from the premises of PTPL on the instruction of Shri Pradeep Kumar Arya, Director of PTPL. Shri Rajneesh Kumar Trehan, owner of M/s Hariom Krishna Transport Company on seeing the 6 No.s of GRs, stated that masala was transported vide those 6 GRs; from his premises to Punjabi Bagh, New Delhi branch of M/s G.G.Carrier. Shri Pankaj Arya, other director of PTPL on being confronted with the statement of Shri Om Prakash and the GRs submitted that he fully ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whom the goods were sold, is not detailed in the S.C Notice, what role he played in evasion duty is not clear from the Notice. 1I find that reply of Shri Pankaj Kumar Arya is not tenable as he himself was looking after work of purchase, production, sale, administration and taxation and he agreed with the statement of his employee viz authorized signatory Shri Neeraj Kumar. In view all these facts, I hold that Shri Pankaj Kumar Arya is liable for penalty under rule 26 of C.E. Rules, 2002. 8. I find that Shri Neeraj Kumar, Authorised Signatory of M/s PTPL, was looking after Central Excise related formalities of the factory and supervise the activities like maintenance of stock registers of raw material and finished goods, issuing invoices, filling returns etc pertaining to M/s PTPL. He was actively involved in this case as he has abetted evasion of Central Excise duty by PTPL. He was knowingly concerned in production, storage, clearance and transportation of non duty paid excisable goods cleared from PTPL and instrumental for booking of the offended goods on the basis of fabricated bills either of PTPL or of M/s Vishwakarma Trading Company, Noida, M/s Rishabh Trading Company, Noida, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty in respect of 63 cartons of flavoured chewing tobacco; that each time Shri Deepak Sharma, Owner of the Vehicle/Truck hands him over the Bills both pertaining to PTPL and M/s Vishwakarma Trading Co., Noida and that on transit the bills pertaining to PTPL are taken back by Shri Deepak Sharma and goods are transported on the bills of M/s Vishwakanna Trading Co., Noida to the premises of M/s Ghatge Patil Transport Ltd., Jahangirpuri, Delhi from where they are sent to the final destinations. Shri Yogendra Kumar Sharma, Proprietor of M/s Om Roadways Corporation stated that they were the Booking agent for M/s Ghatge Patil Transport Ltd., C-9, SMA Industrial Area, Jehangirpuri, Delhi and that that all work related to his transport company was looked after by his son Shri Deepak Sharma. Shri Deepak Sharma admitted that they were booking agent for M/s Ghatge Patil Transport Ltd. and that for booking of goods they were supplied Bilty Book and Challan Book by M/s Ghatge Patil Transport. I find that Shri Deepak Sharma stated that he used to take back the bills of M/s PTPL in transit from the driver of the vehicle for returning the same to Shri Neeraj Kumar and the goods were further transpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liable for penalty under rule 26 of C.E. Rules, 2002 10. I find that Shri Kanwar Singh Yadav, Branch Manager of M/s Ghatge Patil Transport, informed that the said consignments were booked by Shri Yogendra Kumar Sharma, Proprietor of M/s Om Roadways Corporation. 1 find that Shri Yogendra Sharma, Prop. M/s Om Roadways Corporation, has submitted that they are booking agents for M/s Ghatke Patil Transport Ltd., C-9, SMA Industrial Area, Jahangirpuri, Delhi. It was stated that all work to transport co., is looked after by my son Sh. Deepak Sharma. There is no evidence on record that he was in the knowledge of clandestine removal of excisable goods which were liable for confiscation. Moreover, whatever documents were supplied by M/s P.T.P.L. for the covering of excisable goods. the same were given to M/s Ghatke Patil Transport Ltd. while delivering the goods to them. Shri Yogesh Kumar does not appear in personnel hearing. I find that the submissions made by the party is not tenable for the reason that Shri Yogendra Kumar has been running a proprietorship business and engaging his son during the course of his activity. He has contended that his son was looking after the business related t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansported the tobacco/zarda, one cannot conclude that they fully knew the non-duty paid nature of the said tobacco/zarda and still agreed to store and transport the said tobacco/zarda. They also cited case laws in their favour. M/s Ghatke Patil does not appear for personnel hearing. i find that the party's contention that they were not fully aware about the nature of goods transported by them is not acceptable for the reason that it is a well known fact that tobacco/zarda is evasion prone commodity and the party being an experienced transporter bound to have verified the credentials of the customers. 1 find that Shri Naveen Kumar Kaul, Supervisor, M/s Ghatge Patil Transport Limited, has stated that finished goods of M/s Pankaj Tobacco Pvt. Ltd., Noida, were booked by their agent Shri Yogendra Kumar Sharma and his son Shri Deepak Sharma of M/s Om Roadways Corporation; that the finished goods of M/s PTPL, Noida were mainly booked on the bills of either Ms PTPL, M/s Vishwakarma Trading Company, Noida, M/s Rishabh Trading Company Noida, M/s Pooja Traders, Noida and M/s Aamir Enterprises, Noida; that he confirmed that all the consignments of Tobacco / Zarda booked on the bills of M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rda were delivered to them at Madhavnagar on the bills of M/s Vishwakarma Trading Company, through transport M/s Ghatge Patil Transport Ltd. It has been stated by him that the payments in respect of consignment of Zarda received on the bills of M/s Vishwakarma Trading Co. and M/s Rishabh Trading company were made in cash only to Shri Neeraj Kumar or to Shri Pankaj Kumar Arya of M/s PTPL. He confirmed that they have received Zarda consignments on way bills / bilties No. 2416262 dated 04.03.2013 and bills / bilties No.2416299 dated 23.03.2013 as submitted by M/s Ghatge Patil Transport Ltd., on the bills of M/s Vishwakarma Trading Co. Noida. I find that Shri M.D. Kasar was aware that the goods related to above way bills / bilties were cleared clandestinely by PTPL, that's why he made payment for the same in cash. I find that Shri M.D. Kasar neither submitted any reply to notice nor avail the opportunity of personnel hearing. In view of above, I find that Shri M.D. Kasar had knowingly involved in the transaction of excisable goods cleared clandestinely by M/s PTPL and is therefore, liable for penalty under rule 26 of C.E. Rules, 2002 14. I find that Shri Manoj Kumar Patil, Propriet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfirmed the consignments related to them. 1 find that Sh. Shriniwas Hengde has submitted that the goods were purchased under proper documents and payment of the goods was made in cash and by cheques. That the chewing tobacco was purchased in the normal course or trade. It Was never bought to their knowledge that the goods supplied have been clandestinely removed from the factory of M/s Pankaj Tobacco Pvt Ltd and the duty on the goods have not been paid. We have no knowledge of the clandestine nature of the goods delivered. I find that Shri Shrinivas Hegde did not avail the opportunity of personnel hearing. I find that Shri Shrinivas Hegde was aware that the goods related to above way bills / bilties were cleared clandestinely by PTPL, that's why he made payment for the same in cash. In view of above, I find that Shri Shrinivas Hegde had knowingly involved in the transaction of excisable goods cleared clandestinely by M/s PTPL and is therefore, liable for penalty under rule 26 of C.E.Rules, 2002. 16. I find that Shri N.G. Mohan, Proprietor of M/s Shri Ram Stores admitted that his firm used to purchase Aradhna Brand Zarda manufactured by M/s PTPL, Noida, without bills. The unacc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the payment in cash. Where they were clearing the goods on the invoices issued in their name they were receiving the payment by cheque. 4.4 The buyers of goods, M/s Sri Siddheshwar Traders, shop No.11, Kumbharwar shopping centre, Solapur (Maharashtra), M/s Shree Sai Agencies, 299, Satakar Chal, Mangalwar Peth, Madhavnagar Sangli, M/s Siddaram Traders, Shah Peth, Bijapur, M/s Vishal Enterprises, Aditi Chamber, Hugaroni, Karnataka, M/s Shri Ram Stores, C.V.Complex, Station Road, Davangere Karnataka have in their statements recorded under Section 14 of the Central Excise Act, 1944 have stated that they were receiving the clandestinely goods and were making the payments against the goods so received in cash. They also admitted that they were receiving the goods from the Appellant 1 through Ghatge Patil Transport Company. 4.5 Undisputedly the searches were conducted at various location including the factory premises of the Appellant 1, and various residential premises owned by them and their Directors i.e. Appellant 2 and Appellant 3. Searches were also conducted at the premises of the agent of transporter booking the consignments of appellant 1 and also at the premises of the trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Registration Nos. UP 16E4970 and UP 13T-2127; they were the Booking agent for M/s Ghatge Patil Transport Ltd., C-9, SMA Industrial Area, Jehangirpuri, Delhi all work related to his transport company was looked after by his son Shri Deepak Sharma. 4.11 Appellant 4 son of Appellant 6, in his statement dated 23.4.2013 admitted that they were booking agent for M/s Ghatge Patil Transport Ltd. C-9, SMA Industrial Area, Jehangirpuri, Delhi-33 for booking of goods they were supplied Bilty Book and Challan Book by M/s Ghatge Patil Transport, regarding the 63 cartons of flavoured chewing tobacco which were seized along with the truck having Registration No. UP-16E/4970 on 17.04.13 admitted that papers pertaining to said the 63 cartons of flavoured chewing tobacco were given to him by Appellant 5, Authorised Signatory of Appellant 1, these papers contained Invoices of Appellant 1 as well as of M/s Vishwakarma Trading Co; on the basis of said papers he prepared Bilties and handed over the same to Shri Umesh Yadav Driver of the vehicle. he used to take back the bills of Appellant 1 in transit from the driver of the vehicle for returning the same to Appellant 5 and the goods were further transpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to make payment in cash. The fact about the clandestine clearance was admitted by the Appellants and 4.15 Appellant 3 who is son of Appellant 1 and also the Director with Appellant 1, in his statement recorded on 19.12.2014 stated that the finished goods of Appellant 1 were booked with M/s Ghatge Patil Transport Limited, Delhi, through Appellant 6 and his son Appellant 4 of M/s Om Transport Co. Noida. The finished goods of Appellant 1 were mainly booked on the bills of either Appellant 1 or M/s Vishwakarma Trading Company, Bhardwaj Market, Near Water Tank, Barola, Noida-II, M/s Rishabh Trading Company Noida, M/s Pooja Traders, Noida and M/s Aamir Enterprises, Noida; the GRs / Way bills submitted by M/s Ghatge Patil Transport Limited, Delhi pertains to the consignments of Tobacco / Zarda booked on the bills of M/s Vishwakarma Trading Co. Noida, M/s Rishabh Trading Co. Noida, M/s Pooja Traders, Noida and M/s Aamir Enterprises Noida which were cleared clandestinely from the factory of Appellant 1; GRs /Way bills submitted by M/s Ghatge Patil Transport Ltd, Delhi on which finished goods manufactured by Appellant 1, were cleared without payment of duty pertain to the period January, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shes that Appellants are habitual offenders. In fact the maximum demand in respect of clandestine clearance on the basis of the documents recovered during the search/ investigation at the transporter premises is for the period after the first search conducted on 11/12.04.2012. All the concerned i.e. Appellant 1, Appellant 2, Appellant 3 and Appellant 5 who are engaged in manufacture and clearance of the goods have admitted to their roles and the factum of clandestine clearance by adopting this modus opearndi. Appellant 4 and Appellant 6 who are booking agents of M/s Ghatge Patil Transport Company, to have admitted their roles. Transporter has admitted the factum of transport of the clandestinely cleared goods on the basis invoices of fictitious entities and the Customers of the appellant have admitted to the receipt of the clandestinely cleared goods and fact of making payment in cash against these goods. All these aspects on the basis of the evidences have been appropriately discussed in the impugned order. 4.17 It is settled position in law that once the facts have been admitted the same need not be proved/ established again. In case of System and Component [2004 (165) ELT 136 (S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not have been acceded to. Certain documents were tendered by the transporter during the search of his premises and during investigation. The transporter did not disputed these documents at all at any point of time. Appellants also have admitted to the documents in their statement recorded under Section 14. Section 36A of the Central Excise Act, 1944 provides as follows: 36A. Presumption as to documents in certain cases. Where any document is produced by any person or has been seized from the custody or control of any person, in either case, under this Act or under any other law and such document is tendered by the prosecution in evidence against him or against him and any other person who is tried jointly with him, the Court shall, (a) unless the contrary is proved by such person, presume (i) the truth of the contents of such document; (ii) that the signature and every other part of such document which purports to be in the handwriting of any particular person or which the Court may reasonably assume to have been signed by, or to be in the handwriting of, any particular person, is in that person's handwriting, and in the case of a document executed or attested, that it was e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accepted the interpretation put forth by the appellant assessee as regards the word Sauda ‟. The Tribunal has, accordingly, after appreciating the evidence on record held in favour of the Revenue. 4.21 In case of M R Tobacco [2006 (202) E.L.T. 64 (Tri. - Del.)] Delhi Bench held as follows: 8. The learned SDR reiterates the reasons and findings contained in impugned order. He also submitted that the sheets recovered by the visiting officers gave several clues and particulars such as the name of the goods PANKING , the date of clearance, number of borries removed, the transportation details, timing etc. He also relied on the admission made by the accountant about the clandestine removal of such goods. He submitted that these goods were not entered in RG.1 register and even the reply of the appellants to the show cause notice in respect of para 12 thereof, did not dispute the same. It was also pointed out in his statement that actually at the time of visit of the officers 26 machines were running and that they had in all 40 pouch making machines in their premises and 18 to 20 workers were working in the factories. In this connection, he also referred to another statement of Mahe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ets from the premises of the appellants. Though the show cause notice and the order in original refer to them as loose sheets, we find that by referring to the dates and other details contained in them there is a clear continuity interlinking them in a cogent manner. They could have been detached from a note book or exercise book. The continuity is revealed by the running dates starting from 17-1-2002 and ending upto 18-2-2002. We also notice that the starting point in this investigation is the interception of a tempo carrying non-duty paid goods on 19-2-2002. This led to the discovery of the existence of two boras containing contraband and also the recovery of the so-called loose sheets about which the appellants have admitted as goods cleared. In one of the two statements made by the Accountant on 8-5-2002, there is a clear admission that the clearance has taken place in a clandestine manner. It has also been pleaded before us by the learned SDR that while calculating the duty liability, the department has not gone arbitrarily by the production capacity, but by the minute details as stood indicated in the recovered loose slips. Further, we find that the seizures made in transit a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al machines manufacturing gutka and pouches were actually not in use. 7. Relying upon the evidence collected as a result of the search and seizure operation as well as the follow up investigation, the Revenue concluded that the loose sheets represented clandestine removal of gutka from the factory premises of the Assessee. 8. Learned counsel for the Assessee has contended before us that there is nothing on record to suggest who had written the loose sheets and in the absence of this, the loose sheets cannot be used as incriminating evidence against the Assessee. 9. We find that this matter has been looked into all by the authorities below, who found that the loose sheets were maintained in a systematic and date-wise manner. It was held that the loose sheets could have been detached from a notebook or excise book. The fact that the author of the loose sheets was not identified is of no consequence in view of the admission made by the Director of the firm. In any case, we find that all the authorities have concurrently held that the Assessee had cleared the gutka clandestinely without payment of duty. We do not find any error or illegality in the view taken by all the authorities bel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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