TMI Blog2000 (6) TMI 619X X X X Extracts X X X X X X X X Extracts X X X X ..... he same have been removed without payment of duty by the appellants during the period from 19-2-1994 to 31-8-1994. The said findings of the adjudicating authority are based upon the seizure of various documents made by the Directorate of Anti-Evasion at the time of search conducted in the appellants' factory during the period from 19-10-1995 to 30-10-1995. During the search of the factory, office and the residential premises of the appellant firm, apart from detaining various statutory as well as private records, 26,170 pieces of the said 'Himtaj Oil' were also seized from the appellants' factory as well as from its office premises. The said goods were, however, released provisionally upon the appellants' executing a Bond furnishing a Bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. Apart from the above, personal penalty of Rs. 10.00 lakh has been imposed on the appellants under the provisions of Rule 173Q. 6. Dr. Samir Chakraborty, learned Advocate appearing for the appellants, submits that immediately after the search and seizure, the appellants for avoiding protracted litigation and accepting the responsibility in wrong doing of their employees, agreed to settle the matter and deposited a sum of Rs. 31,31,375 between 29-1-1996 and 26-2-1996. The balance amount of Rs. 33,05,640 was to be appropriated and adjusted against the seized Cash of Rs. 33,05,640.00. In this connection, he draws our attention to a letter dated 27-8-1996 written by the Deputy Director of D.G.A.E. (C.E.), Calcutta to the Assistant Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f such non-duty paid goods. Dr. Chakraborty, learned Advocate further submits that the alleged evasion of duty pertains to the period from February, 1994 to August, 1994, whereas the Cash was seized after about one year and eight months during the period - October, 1995. As such, it cannot be said by any stretch of imagination that the Cash seized would represent the sale-value of the items removed in the year, 1994. As such, he makes a prayer that the Department be directed to refund the said Cash amount to the appellants. 8. Dr. Chakraborty, further, argued that at the relevant point of time, dispute as regards the correct classification of 'Himtaj Oil', was going on. The Department's contention was that the said 'Himtaj Oil' is classif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs to some decision wherein in case the duty disputed has been deposited by the appellants, a lenient view has been taken and no personal penalty has been imposed. 10. Shri R.K. Roy, learned JDR appearing for the Revenue reiterates the findings of the Commissioner. It is argued that the appellants have themselves deposited the duty-demand in question. As regards the confiscation of the Indian Currency, Shri Roy submits that though the Revenue has not proved it beyond doubt that the said Indian Currency is the sale proceeds of the non-duty paid goods, but he submits that on the face of clear admission by the appellants, the said Currency has to be treated as tainted and its confiscation by the adjudicating authority was justified. As regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Currency in question is the sale proceeds of the clandestinely removed goods is upon the Revenue, which is required to be discharged by production of an affirmative tangible and positive evidence. In the instant case, we find that the Cash was recovered from different places and from the possession of different persons. Nothing has been placed on record to show that the same is the sale proceeds of the goods removed clandestinely during February, 1994 to August, 1994, when the same were recovered in the month of October, 1995. As such, we fully agree with the submissions of Dr. Chakraborty, learned Advocate for the appellants, that it is highly improbable that the Cash seized would represent the sale-value of the goods made during Februar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll within the factory premises and there is nothing on record to show that the same were not entered in the statutory records and the same were to be cleared clandestinely by the appellants. In respect of the confiscation of other goods, we find that no reasons have been given by the adjudicating authority that the said goods were cleared without payment of duty from the appellants' factory premises. The appellants have contended that the entire goods were accounted for in the statutory records and no reason has been given by the adjudicating authority for their confiscation. We also note that there is no evidence showing that these goods were cleared without payment of duty. As such, we set aside their confiscation and imposition of person ..... X X X X Extracts X X X X X X X X Extracts X X X X
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