TMI Blog2012 (12) TMI 586X X X X Extracts X X X X X X X X Extracts X X X X ..... the effect that the only factory in Mahad area, manufacturing printed laminated film rolls was that of the respondent No.1. Further the statement of the respondent No.3 and his employee were ignored by the Tribunal merely on the ground that their statement in the absence of corroboration by any independent evidence cannot be accepted. There is no analysis of why the orders of the lower authorities holding the "Sikandar Gutka" printed laminated flexible film rolls were liable for confiscation and that respondent No.1 is liable to pay excise duty of Rs.2.57 lakhs is bad in law - restore the matter to the file of the Tribunal for fresh consideration - appeal in favour of Revenue. - Central Excise Appeal No. 256 of 2006 - - - Dated:- 5-11-2012 - J.P. Devadhar and M.S. Sanklecha, JJ. J.B. Mishra for the Appellant M.H. Patil for the Respondent JUDGEMENT M.S. Sanklecha, J 1) This appeal by the revenue under Section 35G of the Central Excise Act 1944 ("the Act") challenges the order dated 27/6/2005 passed by the Customs, Excise and Service Tax Appellate Tribunal ("the Tribunal"). 2) The appellant has reformulated the questions of law and the respondent has no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 and 2002; (ii) duty amount of Rs.2.57 lacs should not be recovered in respect of 9120 kgs. of "Sikandar Gutka" printed laminated rolls seized in the godown of the transporter. Besides the respondent No.2 as the Chairman and Managing Director of the respondent No.1 and respondent No.3 as the Proprietor of the transporter viz. Shivkripa Transport was called upon to show cause why penalty should not be imposed upon them. d) The respondent contested the show cause notice. However, the Assistant Commissioner of Central Excise by his order dated 16/2/2004 held that 40147 kgs. of printed laminated flexible film rolls found unaccounted in the respondent's factory were in a ready to dispatch condition and no satisfactory explanation was offered for not accounting of the finished goods. Further, the Assistant Commissioner also found that the quantity of 9120kgs. of "Sikandar Gutka" printed laminated film rolls found in the godown of the Transporter had been cleared by the respondent company without payment of duty as was evident from the statement of the transporter and his godown Incharge. Consequently, the Assistant Commissioner of Central Excise by an order dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... film rolls found in the respondent's factory. However, the redemption fine on the confiscated goods was reduced from Rs.2,00,000/- to Rs.50,000/-.So far as the duty demand of Rs.2.57 lacs on 9120 kgs. of "Sikandar Gutka" printed laminated rolls found in the transporter's godown was concerned, the Tribunal held that the stand of the respondent that the above goods are manufactured by M/s. Sanket Food Factories Private Limited has force. Further, the Tribunal has also held that no evidence in the form of packing slip or private records were found from the respondent's factory so as to link 9120 kgs. of "Sikandar Gukta" printed laminated film rolls found in the transporter's godown with the factory of the respondent No.1. 4) Mr. J. B. Mishra, Counsel for the appellant in support of the appeal submits as under: a) The order of the Tribunal is a non speaking order in as much as after having confirmed the confiscation has reduced redemption fine from Rs.2 lacs to Rs.50,000/- without assigning any reason; b) The demand of duty of 2.57 lacs confirmed by the Assistant Commissioner of Central Excise and upheld by the Commissioner of Central Excise (Appeal) was over turned by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue be dismissed. 6) We have considered the submissions. Mr. Patil, Counsel for the respondent cited the following decisions: 1. Jain Irrigation Systems-2006 (197) WLT 320 (SC) 2. Supreme Industries 2007 (214) ELT 198 (M.P.) 3. Nakoda Textile Industries 2009 (245) ELT 44 (Guj.) 4. Southern Steel 1979 (4) ELT (J402) (AP) 5. Bhilai Conductors 2000 (125) ELT 781 (T) 6. Trac Air Conditioning 2005 (180) ELT 327(T) 7. Anil Sunit Trade 2001 (129) ELT 616 (T) In support of his submission that mere non accounting of manufactured goods in RG-1 Register is not sufficient for confiscating goods, particularly so when the goods are in the factory and no attempts were made to clandestinely remove the same. To our mind, the aforesaid decisions are not germane to the present controversy. This is for the reason that Tribunal upheld the finding of the lower authority that 40147 kgs. of printed laminated flexible film rolls found in the respondent's factory were manufactured goods in packed and ready to dispatch condition. The aforesaid finding of the Tribunal that the goods found in the factory are confiscated has not been challenged by the respondent bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Tribunal has failed to consider that the adjudicating authority had in his order recorded a finding that the respondent were not recording production in production slips/records so as to evade payment of excise duty. However, the order of the Commissioner (Appeals) placing reliance upon the statement of one Sabestian an employee of the respondent to the effect that the only factory in Mahad area, manufacturing printed laminated film rolls was that of the respondent No.1. Further the statement of the respondent No.3 and his employee were ignored by the Tribunal merely on the ground that their statement in the absence of corroboration by any independent evidence cannot be accepted. There is no analysis of why the orders of the lower authorities holding the "Sikandar Gutka" printed laminated flexible film rolls were liable for confiscation and that respondent No.1 is liable to pay excise duty of Rs.2.57 lakhs is bad in law. Similarly the penalty upon respondent Nos. 2 and 3 have been set aside without any reasons. 9) In view of the above, we answer the questions (a) to (d) in the negative I. e. in favour of the appellant- revenue and against the respondents. 10) In view of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
