TMI Blog2003 (3) TMI 574X X X X Extracts X X X X X X X X Extracts X X X X ..... he lorry. However, he produced Memo No. 807/8-1-95 (two copies) of Prestige Roadlines, Bangalore; Prestige Roadlines consignment Note No. 023559, dated 5-1-95; Bill No. 655/5-1-95 of M/s. Rafiq Brothers (appellants in Appeal No. E/751/98), Hyderabad (two copies) and a duplicate copy of way bill No. 1437903, dated 5-1-95. Md. Kudrathulla (appellant in Appeal No. E/354/99) is the owner-cum-driver of the said lorry, hired by M/s. Prestige Roadlines, Hyderabad. Along with the transporters representative i.e., of M/s. Prestige Roadlines and one P. Kumar who identified himself as a machine operator in the factory of M/s. Dhariwal Tobacco Products Pvt. Ltd., Hyderabad (hereinafter referred to as DTPPL), the goods were examined. The cartons were found to be containing serial nos. marked with red sketch pen and the inscription Manikchand Pan Masala in print both in English and Hindi. The serial nos. on some cartons were repeated and since the driver and the representative of the transporter and the alleged P. Kumar could not produce documents evidencing payment of Central Excise Duty and due to reasons of repetition of serial nos., the goods were seized by the Preventive staff along with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E/752/98, who were their dealers. Thus the full load of 450 cartons was made and loaded in the said lorry on 6-1-95. 4. On enquiries made further, it was revealed that :- (a) these dealers of Rafiq Brothers had prepared certain stock register which appear to be new with over writings and from the explanations it appears that the goods had been supplied to M/s. Rafiq Brothers only on 14-12-94 and 16-12-94 and not on 5-1-95. (b) the statement of the alleged unskilled labourer of M/s. Rafiq Brothers, Shri Faiyaz, revealed that he is totally illiterate and cannot write any language and that he never wrote any serial numbers on any cartons and if there was any damage to any cartons, he used to call persons residing nearby and ask them to write. He further stated that on 5-1-95, he replaced only 10-14 cartons out of 306 cartons available at the godown and he has not replaced any carton received from M/s. Balaji Agencies and M/s. Vishnu Agencies, as those cartons were in good condition. (c) the cartons and contents therein on further examination revealed that serial numbers were written on each carton with red sketch pen only and on all the 450 cartons appeared to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate of 50% ad valorem on the goods valued at Rs. 22,47,750/- (value shown in Bill No. 655, dated 5-1-95 issued by consignment agent, M/s. Rafiq Brothers) should not be demanded. (b) Shri M. Kudrathulla, the driver-cum-owner of vehicle No. KA04-1189 was also directed to show cause as to why the vehicle should not be confiscated under Section 115(2) of the Customs Act, 1962 made applicable to Central Excise as per Notification No. 68/83, dated 4-5-83 issued under Section 12 of the Central Excise Act, 1944 and penalty should not be imposed under Rule 209A of Central Excise Rules, 1944. (c) M/s. Rafiq Brothers consignment agent, were directed to show cause as to why penalty should not be imposed under Rule 198(2) and Rule 209A of Central Excise Rules, 1944 for abetting the offence of M/s. DTPPL in the clandestine removal of 450 cartons of Pan Masala under Bill No. 655, dated 5-1-95. (d) Shri Vishnu Das Baheti, Proprietor of M/s. Vishnu Agencies, was directed to show cause as to why the penalty should not be imposed under Rule 198(2) and Rule 209A of Central Excise Rules, 1944 for supporting M/s. DTPPL and M/s. Rafiq Brothers by giving incorrect and misleading evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal took the same view in case of Ramraju Surgical Cotton Mills v. CCE, Madras [1996 (82) E.L.T. 86] and in the case of Auto Industries v. CCE, Madras [1995 (76) E.L.T. 325]. Since admittedly no duty was paid on the goods, no deduction towards duty payable could be allowed. Hence these appeals. 7. After hearing both sides and considering the material on record and the statements for reconciliation prepared by the appellants advocate, it is found :- (a) The appellants have made a plea that the lorry left Hyderabad at about 10 PM on 5-1-95 and was intercepted at Kallur on the afternoon of 6-1-95 and when the lorry was intercepted, there was no case to believe that the goods were non-duty paid or there was no case for seizure of the goods. Whether the goods are duty paid or not and whether the goods are liable for seizure will depend upon the belief, which an officer would entertain at the time of intercepting a particular consignment. In this case, the show cause notice in the opening paragraph indicates that the entire operations for location of that particular lorry and its interception and consequent investigation was pursuant to an information received about non-exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sport of non-duty goods. This could be a reason, to come to a conclusion that there is involvement in covering up the transport of the subject goods. The statement of Shri Faiyaz, cannot be doubted. He denies having written any numbers. He could not. He is illiterate and nothing contrary to that is brought on record by the appellants. The statement of the persons of the two sub-dealers of M/s. Rafiq Brothers is not challenged, it has to be accepted. If that is done, the claim of M/s. Rafiq Brothers to have got these 450 cartons loaded in the lorry and thereafter transporting the same to their buyers in Coimbatore fails it cannot be accepted. They have failed to satisfy the possession of duty paid 450 cartons on 4/5 January with them. The rejection, is reinforced, in view of that fact that the provisional release of the goods has been accepted by M/s. DTPPL and they have executed a bond. If the goods were sold by them to their dealer M/s. Rafiq Brothers, who in turn had sold to their sub-dealers, then there was no case or cause for M/s. DTPPL to have executed bonds and or accept the provisional release of the goods under seizure, which could be made under Rule 206(3) only to an owne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rove the duty payment on the said serial numbers of the cartons during the month of January, 1995. The Advocates have submitted a reconciliation list of serial number of cartons with duty paid invoices of October, November and December, 1994. This would establish that duplicate serial nos. on cartons were being given. On a question from the Bench, the ld. Advocate for the appellants fairly admitted that Shri B. Srirama Murthy was not cross-examined. His statements have therefore gone unchallenged. In this view of the matter, when it is found that Shri B. Srirama Murthy, the Packing Supervisor of M/s. DTPPL, admits the handwriting of the packing slips found in the seized cartons and these packing are having the dates correlated to the months of January, 1995, the reconciliation of statement of duty payment as prepared by the ld. Advocates which relate to the months and to the invoice numbers on which the duty was paid to invoices of the months of October, November and December, 1994, only would indicate that this is a clear-cut case of clandestine removal of duplicate serial numbers of cartons containing the excisable goods thereon which were manufactured or and packed in January, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... val of the duty paid goods. When majority of the goods have been proved to have been manufactured and packaged ready for marketability i.e. levy of excise duty thereon only, we cannot accept them to have been stocks of October, November, December, 1994 as was being claimed by citing the invoices of those months in the reconciliation statement prepared and submitted by the ld. Advocate. The very fact that the manufacturer M/s. DTPPL has accepted the provisional release and executed the bond thereto and that the goods have been proved to be manufactured and packed in January, 1995 as per the statements of Shri B. Srirama Murthy and have been found in the truck at Kallur, miles away from the factory premises in Hyderabad on their way to Coimbatore via Bangalore, then no further positive Action and or evidence is required to prove that the goods are non-duty paid excisable goods removed without payment of duty from the factory. (e) No duty paid invoices covering the said carton numbers to have been cleared up to 5-1-95 have been produced to evidence duty payment by the manufacturer and or the dealers to these notices. The ld. Advocates have relied upon lot of case laws to claim t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner to be not legally correct and proper is accepted and the Commissioner is directed to determine the redemption fine in lieu of confiscation of the 450 cartons in the remand proceedings, if permissible under law. (i) As regards the liability for confiscation of the lorry and liability of penalty on Shri Kudhrathulla, appellant in Appeal No. E/354/99, it is found that the lorry driver-cum-owner has accepted certain excisable goods for transportation from Hyderabad to Coimbatore and for that purpose he has been provided certain documents. In the facts of this case, the conscious knowledge of the lorry owner-cum-driver in having knowingly transported non-duty paid goods is not established. Therefore, the liability for confiscation of the truck cannot be upheld as arrived at by the ld. Adjudicator. If the truck cannot be found as liable for confiscation, the driver-cum-owner thereof cannot be held liable for penalty. These appeals as regards the redemption fine in view of the confiscation of the lorry and the penalty is therefore allowed. (j) The liability of M/s. Rafiq Brothers and their dealers i.e M/s. Balaji Agencies and M/s. Vishnu Agencies along with the liabili ..... X X X X Extracts X X X X X X X X Extracts X X X X
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