9911796707
TMI Blog2001 (5) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... alty of Rs. 50,000/- on Shri T. Vinayaka Ravi Reddy under Rule 209A of the C.E. Rules, 1944 besides penalty of Rs. 2,00,000/- on the appellant company. 2. Ld. Consultant Shri Sarbheswara Rao took us through the Order-in-Original and pointed out that the Additional Commissioner in the Order-in-Original has based his findings on the bills recovered from Vinayaka Agencies and M/s. DCM who are the agents and the wholesale dealers to confirm higher quantity of aerated water and cool drinks said to have been received by DCM and which was reflected in their accounts. It is his contention that this cannot be the ground at all to confirm clandestine manufacture and removal of goods as alleged in the show cause notice. The appellants' records have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essence", and also the purchase of the raw materials like sugar, Co2, crown corks, there would not have been production and removals. He points out that the department ought to have established the case by showing that the appellants had received the quantum of "essence" from the supplier namely M/s. Parley Ltd. besides having purchased CO2 and crown corks. He points out that these are the factors which have been taken into consideration in large number of judgments and in all those cases on which the cases were booked were on the same lines were set aside by the Tribunal on the ground that the department had failed to establish the manufacture and clandestine removal of the final goods as in the following cases :- (i) Krishna Bottlers, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the appellants had admitted about the payments made in cash and on that basis has confirmed the Order-in-Original and thus the order is not also a speaking order. He further submits that the department compelled them to make payments accordingly. Although they were forced to sign on the computerised statement and they made the payments, it does not establish clandestine manufacture and removal of the goods. He submits that this was before the issue of show cause notice and they had been asking the department to establish the clandestine removal. The same has not been done till date, but they proceeded only on the basis of the statement of the dealers and alleged admission made by the Finance Manager which cannot be a ground for confirma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilar matters, it had been noted that the most important ingredient for manufacture of the final product, i.e. cool drinks, the quantum of "essence" which the franchisee receives from M/s. Parley, are sugar, crown corks, CO2 etc. These are the factors which have been taken into consideration to arrive at the assumption of manufacture and removal clandestinely by the manufacturer of final goods, as held in Krishna Bottlers Vijayawada Ltd. case supra. In the present case, the appellants' production chart and Production Manager's diary were taken by the investigating officers. There is no reference to any of the material placed by the appellants and the electricity details and receipt of other registers maintained by them to co-relate the total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g recorded by both the authorities and therefore, we are of the considered opinion that as both the orders are not speaking orders, it is not proper therefore for us to set aside the orders on the ground that department has not established the case of clandestine removal. We notice that the Order-in-Original having suffered from basic infirmity in proceeding only on the evidence of the dealer without looking into the records of the appellants. Hence the matter has to go back to the original authority for de novo consideration. The original authority shall grant an opportunity of hearing to the appellants and reconsider the entire case in the light of the evidence adduced by the Department on clandestine manufacture and removal of goods. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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