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2022 (3) TMI 503

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..... on record. It is settled proposition that that the demand of duty on goods alleged to be clandestinely removed have to be supported with evidence of procurement of inputs, employment of labour, freight, receipt of consideration, etc. i.e. evidence to corroborate, which is lacking in the present case. Therefore, the duty is levied only on assumption and presumption, as such is fit to be set-aside. Whether the confiscation of goods/raw material etc seized amounting to ₹ 25,41,050/- was proper and legal? - HELD THAT:- The entire seizure was made at the factory premises of the Appellant - Jindal Cables and was seized since no documentary evidence for proper accountal of raw material, semi-finished goods, finished goods and scrap was provided, and thus under a reasonable belief that the said goods were procured and manufactured in the clandestine manner for illegal clearances, said goods were seized and confiscated. In this regard, Ld. Counsel for the Appellant - Jindal Cables stated that is admitted that one more manufacturing unit M/s NN Lite was also functioning from the said premises, and the officers should differentiate them - From the perusal of the show cause notice .....

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..... on the premises of the appellant - Allegation against the appellant is that he has procured 650591 kgs of copper scrap clandestinely, out of this he had cleared copper ingots and copper rod, collectively weighing 3,99,122 kgs. This entire allegation is based on the recovery of some documents (slips etc.) from the premises. It is also found that no investigation from filling station etc., was made in order to corroborate the receipt of fuel and other raw materials, required or consumed in the manufacture of said huge quantity of copper ingots. The Hon ble High Court of Madhya Pradesh has held in the case of UNION OF INDIA VERSUS MSS FOODS PRODUCTS LTD. [ 2010 (11) TMI 275 - MADHYA PRADESH HIGH COURT] that under the Central Excise Act, 1944, excise duty is leviable on manufacture and production of excisable goods and the same is payable at the time of removal. Therefore, to establish the charge of clandestine removal of excisable goods, it is necessary to establish that the excisable goods were produced or manufactured by the assessee concerned and for attracting Section 11A of the Act, it is necessary to establish that the excisable goods were clandestinely removed without paym .....

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..... 00/- and copper scrap weighing 25.732 Kg. valued at ₹ 1,06,78,780/-. As on demand the supervisor present - Mr. Rakesh Jain could not produce any documents in support of the stock. The same was seized and certain documents also resumed for further investigation. 3. Mr. Rakesh Kumar - Supervisor inter-alia stated that he is working in this unit for the last 6 months. The unit is run both on electricity as well as power from the generator. They receive copper scrap from various dealers. The accounts and management of the factory is looked after by Mr. Deepak Gupta. Most of the times they dispatch their finished product copper ingots by vehicle No. DL1LB 5529 owned by one Mr. Pappu Puran. They have been receiving copper scrap from dealers like Mr. Pappu Puran, M/s Nalanda Metal, M/s Salim Metal. After manufacture of ingots they usually dispatch to the rolling Mills namely i) M/s Pappu Pal Rolling Mill, Mandoli, ii) M/s Raghupati Rolling Mills and iii) M/s Mahavir Rolling Mill. 4. The statement of Driver of the vehicle No. DL1LB5529 was also recorded namely Mr. Maan Singh, who inter-alia stated that he has been transporting the goods copper ingots manufactured by M/s Jin .....

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..... ound in the factory on 05.11.2011 is liable to confiscation under Rule 24 of Central Excise Rules, as such stock appeared to be unaccounted with intention to clear without payment of duty. 8. It further appeared that M/s Jindal Cables had intentionally not maintained any stock register to clear the goods without payment of duty. Further, Mr. D.B. Jain, Accountant of M/s Jindal Cables admitted in his statement, that they have been clearing copper wire manufactured without raising invoices. It further appeared that Indian currency ₹ 4.65 lakhs was liable to be confiscated as the same appears to be sale proceeds of the goods manufactured and cleared by M/s Jindal Cables without payment of duty. It further appeared that both M/s Jindal Cables and M/s Jindal Metal have contravened the provisions of Rule 6, 4, 9, 10, 11 and 12 of Central Excise Rules. Accordingly, show cause notice dated 02.05.2012 was issued directing M/s Jindal Metal to file reply as to why not the goods valued at ₹ 1,56,15,180/- found during the course of physical verification be not confiscated with further proposal to confiscate the cash found ₹ 4.64 lakhs at the residence of Mr. Deepak Gupta wi .....

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..... diameter. Since the turnover of M/s Jindal Cables was less than ₹ 1.5 crore they were not paying Central Excise duty. On being asked that the turnover of M/s Jindal Cables as per the balance-sheet for the year 2010 11 was ₹ 2,24,36,447/- then why they have not got themself registered and paid duty. It was stated, this amount includes trading turnover. 13. The officers also found documents of M/s G. N. Trading, Partnership concern of Mr. Naresh C. Gupta, which was in trading, also lying in the same premises. M/s G. N. Trading was the partnership firm and the other partner is Ms. Meenu Gupta daughter of Mr. Naresh C. Gupta. This firm was trading in copper wire and PVC wires etc. 14. Mr. D. B. Jain further stated that M/s Jain Trading Company (JTC), the documents of which (like account books, Ledger for the year 2009 10) were also found in the premises of M/s Jindal Cables, it was stated that JTC was actually a trading firm owned by him, which came into existence in 2008 and was engaged in trading of copper wire, aluminium wire and PVC wires. He further stated entries in note book Neelgagan resumed and marked as No. 41 of Annexure A to punchnama drawn in fact .....

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..... her appeared that although as per their records they were having stock of copper ingots raw material, copper wire rods finished goods and copper scrap, but on physical verification no stock was found. Statement of Mr. Anil Kumar Goyal, Director was recorded who did not accept the fact that his company have done any job work for M/s Jindal Metal. Further RRM deposited ₹ 1,45,715/- towards the excise duty against shortage of goods found in their factory in physical verification valued at ₹ 13,97,780/-. 17. In follow-up investigation, the officers also visited M/s Chandra Rolling Mills, which was engaged in manufacture of copper wire rods from copper ingots/bar and were registered with the Department. During the proceedings, stock of finished goods was found tallied with the records. Further no incriminating documents were found. Further statement of Mr. Ashok Arora Director of M/s Chandra Rolling Mills was recorded who on being shown the photo copy of resumed documents from JM admitted that one gentleman has approached their unit for getting copper wire rods manufactured out of raw material to be supplied. Accordingly, one ingot weighing 140 Kg. was received for jo .....

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..... that they have not received any material from M/s Jindal Metal. Thus, M/s Jaishree Ram Engineering did not accept any receipt on kachhi parchi. In follow up investigation, Mr. Shobit Bansal from M/s B.P. International also stated that he has never received nor undertaken any job work activity for M/s Jindal Metal. 21. Statement of Mr. N. C. Gupta, Partner of M.s Jindal Cables was recorded who inter-alia stated that M/s Jindal Cables had come into existence in the year 2004-05 and they were engaged in manufacturing of copper wires as well as PVC cables. There were also trading in copper wires and PVC cables. They were not registered with the Central Excise Department as their turnover of dutiable goods was below the SSI exemption limit of ₹ 1.50 crores. 22. M/s Jindal Metal submitted a letter received by Revenue on 16.12.2011, inter alia stating/praying for release of the seized goods valued at ₹ 1,56,15,180/- stating that they have purchased copper scrap on various dates from scrap dealers as per list annexed to the letter, along with the invoices. It was also mentioned that the entries of the said goods could not be made in the stock register, being SSI unit, an .....

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..... n at residence containing handwritten kachhi parchi of various persons and asked to explain the entries made therein, he stated that those entries were related to dispatch of the goods, but he did not know much about the same. Further stated that the details will be given by Mr Deepak Gupta. 28. On being shown resumed file numbers at serial No. 42, 44 and 45 Annexure A to punchnama drawn at residence containing handwritten Kachhi Parchi, as well as print outs of accounts, on being asked to explain the entries therein, he stated that these related to receipt of the goods, entries in file No. 44 and 45 were related to miscellaneous expenditure. But he did not know much about the entries, and details may be asked from Mr. Deepak Gupta. It appeared to Revenue that Mr. N.C. Gupta denied to comment on most of the incriminating documents pertaining to M/s Jindal Metals and stated that Mr. D. K. Gupta could better comment on them. 29. Statement of Mr. D.K. Gupta was also taken on record on 27.04.2012. On being asked as to why the bills in support of the stock found on 05.11.2011 were submitted only vide letter dated 16.12.2011, found in the premises of M/s Jindal Metal or found i .....

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..... thout any valid documents from M/s Jindal Metal and thereafter converted them into copper wire rods which were dispatched according to directions of the M/s Jindal Metal. In reply he stated that he could not comment on the same. 36. On being shown the statement recorded on 05.11.2011 of Mr. Rakesh - Supervisor of M/s Jindal Metal, stating that they have dispatched 1078 numbers of copper ingots weighing 150.920 tonnes to Mr. Pappu Pal, RRM and MRM in the month of October and November, 2011, without any valid documents from M/s Jindal Metal. In reply, he stated that he could not comment on the same. 37. In his further statement Mr. D. K. Gupta inter alia stated that the documents resumed from the residential premises on 05.11.2011, probably belong to M/s G. N. Marketing which is a trading firm of Mr. N. C. Gupta. He further stated that he does not look after any work of M/s G. N. Marketing. On being shown file resumed Sl. No. 37 from the residence, he stated that the handwriting on the loose papers appear to be of Mr. D. B. Jain who is also residing on 2nd floor on rent and also engaged in trading under the name and style of M/s Jain Trading Company. Similarly, Neelgagan notebo .....

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..... copper wire of different sizes from M/s Jindal Cables without bill on kachhi parchi in the financial year 2011-12. Further, on being shown the transactions / clearances recorded in their name from the records found at M/s Jindal Cables; He accepted that in the financial year 2011-12, he had purchased 14180.4 kg. of copper wire valued at ₹ 66,11,139/- from M/s Jindal Cables without invoices. He further stated that he will pay duty and handed over a cheque dated 16.07.2015 for ₹ 4 lakhs towards his duty liability. However, Sh. Jitender Kumar within few days retracted his statement vide letter dated 04.08.2015. 41. Further enquiry was made at M/s Yash Cable Industries, Shahdara, who are engaged in manufacture of PVC insulated wire. The Proprietor is Amik Kumar Parak denied of having made any unaccounted purchases from M/s Jindal Cables. Similarly, Mr. Harish Chawla, Proprietor of M/s S. S. Cable Industries, Vishwas Nagar, New Delhi also denied having purchased any goods from M/s Jindal Cables without invoices. 42. In his further statement recorded on 27.07.2015, Mr. Deepak Kumar Gupta disagreed with the statement of Mr. Jitender Kumar of M/s Omex Cable Industries. M .....

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..... iver/ owner vehicle No. DL1B 5529 has stated that he have transported almost 100 trips for transporting of copper ingots manufactured by M/s Jindal Metal to various parties having weight of 5.5 to 6.0 MT in each trip. However, no papers were given to him for transportation. 47. Further, Mr. S. N. Bhutani alias Pappu Pal, Proprietor of M/s Krishna Rolling Mills had admitted in his statement that he has received approximately 116 tons of copper ingots from M/s Jindal Metal for converting to copper rods without proper invoices or challan. 48. It further appeared that though the affairs recorded in various kachhi parchi and other private records belong to clandestine manufacture and clearance by M/s Jindal Metal, but Mr. D. K. Gupta have denied the same as belonging to M/s Jindal Metal by stating that the author Mr. D. B. Jain and Mr. Rakesh Jain can explain these. 49. It further appeared to Revenue that at the time of inspection on 05.11.2011 production was going on in M/s Jindal Metal wherein the excise returns filed for the period April, 2011 to October, 2011, they have shown Nil turnover / production. The allegation of unit being in production for the last few months, seem .....

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..... to ₹ 25,41,050/- were confiscated from the premises of M/s Jindal Cables with option to redeem on payment of fine of ₹ 2 lakhs. Both the amounts of cash seized, were ordered to be appropriated with the redemption file. Further, duty of ₹ 1,45,715/- was confirmed on M/s Raghupati Rolling Mills and full appropriation of duty with amount already paid. Further, penalty under Rule 26 was imposed as follows:- Sl. No. Name Amount (Rs.) 1. Sh. Deepak Kumar Gupta 2,00,000/- 2. Sh. Rakesh Jain 2,00,000/- 3. M/s Shree Krishna Rolling Mills Prop. S. N. Bhutani 2,00,000/- 4. M/s Chandra Rolling Mills Pvt. Ltd., 2,00,000/- 5. M/s Tirupati Industries 2,00,000/- 6. Sh. Desh Bhushan Jain 2,00,000/- 51. Being aggrieved, the appellant .....

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..... the property of Sh. Naresh Chand Gupta and his wife. A panchnama was drawn with much callousness on the part of the officers as no indication was given as to wherefrom the documents were seized, which becomes essential in the current matter where more than one family shared the same premises. He further states that Panchnama also fails to mention to whom these documents pertained whether firm or individual. He also states that no steps have been taken by the officers to ensure proper sealing of documents so as to prevent tampering. We have perused the said Panchnamas both dated 05.11.2011. Panchnama drawn at the factory premises suggests that the factory is built up on 102 sq. yards approx. and has basement, ground, first with a mezzanine floor and second floor. Wire drawing machines and other machines were also found installed at basement, ground and first floor and one electricity meter was also used in factory premises. Sh. Desh Bhushan Jain, Accountant states in the Panchnama that one more firm in the name of M/s NN Lite is also functioning in the same premises and is also engaged in manufacturing of PVC cables of copper. Further, panchanama merely states that some incriminati .....

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..... session of the Appellant - Jindal Cables nor from the possession of any of the partners of the appellant, at the best, they can be termed as third-party documents. It is a settled law that unless such documents are independently corroborated, the third-party documents cannot be admitted as evidence. The respondent-Commissioner should have conducted the independent examination/inquiry in respect of each of the documents. 58. From the perusal of loose-papers/note-books/kacchi parchies in Annexure-2(I), 2(II) 2(III) referred as RUD-62, 63 64 (for appellant - Jindal Cables) and relied upon by the Revenue, it is noticed that few names, figures are appearing and were hand-written. We observe that the Ld. Commissioner has not carried out corroboration of the seized private records/kacchi pachies. He should have further summoned the persons whose names were appearing on the private records such as of Ashwani, Prithviraj, Manoj Gahlot, Vicky, Sunny Sehgal, Amit Singhal, Tiwari, Rajkumar and others, for corroboration. We find that only the statements of the three purchasers/persons whose names are appearing in the said private records were taken i.e., Sh. Jitendra Kumar, Proprietor, M .....

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..... nstead of dealing with the contentions/reply and evidences given by the appellant - Jindal Cables, has tried to justify the entries recorded in the private records/clandestine removal, by merely relying upon the statement of Sh. Desh Bhushan Jain accountant of the Appellant - Jindal Cables. Ld. Counsel for the appellant has stated in its reply that reliance could not be placed upon the statement of Sh. Desh Bhushan Jain, being a Co-Noticee, who while inculpating the Appellant has exculpated himself. He further stated that Sh. Deepak Kumar Gupta and Sh. Naresh Chand Gupta had categorically denied any relation to the contents of the various documents and had specifically stated that those were in the writings of Sh. Desh Bhushan Jain and the documents might be containing details of business of his proprietary concern M/s Jain Trading Co., (Concern of Sh. Desh Bhushan Jain). This was also brought to the notice in the reply dated 26.09.2017, that credence cannot be placed upon the statement of Sh. Desh Bhushan Jain. The Commissioner disregarded the statement of Sh. Deepak Kumar Gupta dated 04.09.2012, regarding the authenticity of the documents only on the basis that this statement was .....

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..... ithout any evidentiary value and therefore could not be relied upon as held by the Hon ble High Court of Delhi in the case of J. K. Cigarettes Ltd. Vs. CCE, 2009 (242) ELT 189 (Del) , Hon ble Allahabad High Court in the case of CCE v Kurele Pan Products Pvt. Ltd. 2014 (307) ELT 42 (All), CCE, Meerut-I v Parmarth Iron Pvt. Ltd. 2010 (260) ELT 514 (T), Basudev Garg v CC 2013 (294) ELT 353 (Del.). 61. We also find that there is no evidence on record brought by the Revenue to prove the flow back of money consideration in respect of the goods alleged to be clandestinely removed. There is no evidence as to how the alleged 92683 kgs of copper wire have been transported as no statement of any transporter has been recorded and placed on record. It is settled proposition that that the demand of duty on goods alleged to be clandestinely removed have to be supported with evidence of procurement of inputs, employment of labour, freight, receipt of consideration, etc. i.e. evidence to corroborate, which is lacking in the present case. Therefore, the duty is levied only on assumption and presumption, as such is fit to be set-aside. 62. As per Annexure-A i.e., the list of documents res .....

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..... . Confiscation of the raw material under Rule 25 of the Rules is also not sustainable, when no specific clause of Rule 25(1) has been mentioned either in the show cause notice or in the impugned order. From the perusal of the show cause notice dated 02.05.2012, we have noticed that while making allegations for confiscation, specific ground of allegation is absent. Rule 25(1) contains four clauses i.e., (a) to (d), containing altogether different clauses/grounds but we find none of them invoked by the Revenue, it has merely stated as to why the goods be not confiscated under Rule 25 of the Rules, for this we rely on the ruling in case of Amrit Food Vs. CCE - 2005 (190) ELT 433 (SC). Therefore, confiscation of goods is bad and therefore liable to be set-aside. 64. Regarding the currency amounting to ₹ 4,65,000/- seized from the factory premises of the Appellant-Jindal Cables, it is apparent from the reply filed by the Appellant that out of the total amount ₹ 1,45,283/- belong to the Appellant-Jindal Cables and ₹ 1,78,844/- belonged to M/s NN Lite, ₹ 63,786/- belonged to M/s G.N. Marketing and the balance amount of ₹ 77,087/- could only be explained by .....

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..... orce in the point stated by the Ld. Counsel for the Appellant-Jindal Metal that vide the impugned order, duty of ₹ 1,83,99,597/- has been demanded. Out of the said demand, duty of ₹ 68,17,304/- has been demanded on the copper ingots which are alleged to be sold by the appellant. The remaining duty of ₹ 1,15,82,293/- is confirmed on the ground that the copper rods were allegedly sold by the appellant directly from the premises of various rolling mills. The Commissioner has placed reliance upon the statement of the driver Sh. Maan Singh who is admitted to have said that he has been transporting copper ingots for the last three to four months, and he had transported approximately 5.5 to six tonnes of copper ingots to M/s Pappu Pal Rolling Mill, the preceding day. The appellant is alleged to have clandestinely cleared the copper ingots manufactured by him to various rolling mills for manufacture of copper rods on job work basis. The allegation that the appellant has cleared the said Copper rods directly from the premises of the rolling mills (job workers) to its buyers has been confirmed by the Commissioner in the impugned order. The said rolling mills are M/s Sh. Kri .....

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..... spectively. We have perused all the statements including that of Sh. Deepak Kumar Gupta, proprietor dated 05.11.2011, 16.12.2011, 27.4.2012, 30.4.2012, 4.9.2012, 23.4.2015, 27.7.2015, 16.5.2016, and 06.06.2016 of Sh. Desh Bhushan Jain, accountant of M/s Jindal Cables. We find that all the rolling mills, where follow up investigations were made, except for Sh. Satya Narayan Bhutani, denied receipt of Copper Ingots from the appellant-Jindal Metal clandestinely. All the other owners except Sh. Satya Narayan Bhutani (who later rescinded his statement) denied receipt of copper ingots from the appellant clandestinely. All these statements are duly incorporated in the show cause notice. We fail to understand as to why the statement of only one person is preferred over the others six mill owners. We observe that the ld. Commissioner have arbitrarily rejected the statement of other mill owners, which he shouldn t have. 68. Ld. Commissioner has relied upon the statement of Sh. Rakesh Jain. According to him Sh. Rakesh Jain, the Supervisor/Manager of the Jindal Metal in his statement dated 05.11.2011, has admitted that for manufacturing of copper ingots, appellant had received Copper scrap .....

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..... irmed that they supplied scrap to Jindal Metal. Transporter has also confirmed the same. We noticed that the investigating officers while recording the statements of copper scrap dealers did not confront the said persons with the contents of kaccha parchies and notebooks. Thus, the contents of the said documents remain uncorroborated and as such it also loses its credibility. 70. We note that statements of various persons were recorded, viz., S/Sh. Deepak Kumar Gupta, Prop. - Rakesh Jain (Supervisor), Satya Narayan Bhutani, Anil Kumar Goel (Director in M/s Raghupati Rolling Mills Pvt. Ltd.), Ashok Arora (Director in M/s Chandra Rolling Mills Pvt. Ltd.), Brijesh Kumar (Proprietor of M/s Tirupati Industries), Arun Kumar (Director of M/s Valson Rolling Mills Pvt. Ltd.), Desh Bhushan Jain, Hulash Chand Aggarwal (Director- M/s Jai Shri Ram Engineers Works Pvt. Ltd.), Govind Ram C/o Ganpati Tempo Transport Service Naresh Chand Gupta (Partner of M/s Jindal Cables) etc. The entire case is based on private records/Kacchi Parchies the corroboration of which is sought to be achieved by the statements made by some of the above persons. It is also a fact on record that Sh. Deepak Jain, S .....

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..... nchanama it is clear that the same is seized from the residential premises of the proprietor and was recovered from an almirah at the first floor of A-25, Vivek Vihar. Panchnama further revealed that keys of the said almirah were stated to be with Sh. Naresh Chand Gupta who opened the said almirah. Ld. Counsel for the Appellant-Jindal Metal states that, it is an undisputed fact that Sh. Naresh Chand Gupta was residing at the first floor of the premises whereas Sh. Deepak Kumar Gupta, the proprietor of the appellant was residing in the back portion of the ground floor of the house. Therefore, seizure of the cash being made from almirah at the first floor, it cannot be assumed that the same was recovered from the proprietor of the appellant M/s Jindal Metal. We have perused the letter dated 30.12.2011 of Sh. Naresh Chand Gupta vide which he has explained that out of the said currency, ₹ 4,00,000/- was received as advance from one Sh. Dharam Pal for sale of the land at Saharanpur and the remaining ₹ 64, 000/- was kept by him for his day-to-day expenses. An affidavit dated 20.12.2011 was also filed by Sh. Dharam Pal.We agree with the above contention of the Ld. Counsel as .....

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..... Ltd. v CCE 1989 (39) ELT 655 (T), Raza Textiles Ltd. v CCE 1989 (44) ELT 233 (T), Hindustan Lever Ltd. v CCE, Raipur 1996 (87) ELT 385 (T), Krishna Co. v CCE, Jaipur 1998 (97) ELT 74 (T), Kothari Pouches Ltd. Anr v CCE, New Delhi 2000 (41) RLT 209 (T), Hindustan Coca Cola Beverages Pvt. Ltd. v CCE, Thane 2006 (205) ELT 700 (T), Rina Dyeing Printing Works v CCE, Surat 2007 (209) ELT 190 (T) and Kuber Tobacco Products Ltd. v CCE, Delhi 2013 (290) ELT 137 (T)]. 76. In view of abovementioned facts and settled position of law, we hold that the allegation of clandestine manufacture and removal of finished goods by the Appellants, made in the show cause notice, is merely on assumption and presumption, without sufficient material evidence corroborating the said allegations. Therefore, we also set aside the penalty imposed, under Rule 26 of the Central Excise Rules, 2002 on other Appellants i.e., i) Deepak Kumar Gupta - Partner of Jindal Cables; ii) Prop./Director/Partner of M/s Chandra Rolling Mills Pvt. Ltd., and M/s Tirupati Industries, iii) Mr. Rakesh Jain and iv) Mr. D. B. Jain. 77. We, therefore, set aside the impugned Adjudication Order dated 31.01.2018, p .....

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