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2019 (4) TMI 648 - AT - Central ExciseClandestine removal - Cigarettes - Currency - absolute confiscation - manufacturer of clandestined cleared goods not identified - retraction of statements - Held that:- It is a fact on record that during the course of investigation, some cash and some cigarettes were recovered from Shri Ajay Adwani which were seized. The cash was also seized recovered from the possession of Shri Samaylala Janghel and at that time, statements of both the appellants were recorded, but, these statements were retracted by them and thereafter no statements of the appellants have ever been recorded and no effort were not to investigated the manufacturer of these cigarettes - Unless and until it is identified who is the manufacturer of clandestine cleared the goods, the allegation that the cash recovered from the appellants is sale proceeds of clandestine removed cigarettes is not sustainable. Revenue has failed to establish that who is the manufacturer of clandestine cleared the goods and no duty is sustainable on account of clandestine cleared goods and it is a fact on record that the appellant are not the manufacturer and are only trader, therefore, in the absence of identifying who is manufacturer of goods, it cannot be held that the Indian currency recovered from the possession of the appellants is the sale proceeds of clandestine manufacture and cleared cigarettes. Seizure of Indian Currency - Held that:- The Indian currency has been seized under Section 121 of Customs Act, 1962 which were made applicable to Central Excise matters vide Notification No. 68/63-CE dated 04.05.1963, issued under Section 12 of the Central Excise Act, 1944 - he Indian currency can be ordered for confiscation is only in terms of Section 111, 113 and 125 of Customs Act, 1962 which were not made applicable in terms of Notification No. 68/63-CE dated 04.05.1963. Therefore, the Indian currency seized cannot be confiscated under Section 121 of the Customs Act, 1962 - The currency seized is required to be released to the appellants and seized goods cannot be held liable for confiscation - no penalty is imposable on the appellants. Appeal allowed - decided in favor of appellant.
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