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2019 (6) TMI 193 - AT - Central ExciseClandestine removal - Pan Masala, Mouth Freshner and Chewing Tobacco - Compounded Levy Scheme - case of appellant is that SCN is issued on the basis of assumptions and surmises - HELD THAT:- The goods found in possession of the Appellant were manufactured by the said company and even if the Appellant had obtained the goods from somewhere else and not from the company, the duty on the said goods had been received by the Revenue under the compounded levy scheme. In any case, Central Excise duty is required to be paid by the manufacturer and since the Appellant is not the manufacturer of the said goods, duty cannot be recovered from the Appellant. Further, it has been recorded by the Commissioner (Appeals) that there is no evidence on record to show that the Appellant had manufactured the said goods. Department is of the view that the Appellant had gotten the impugned goods manufactured from somewhere else and was operating under the guise of being a simple trader. However, since the Department has failed to bring any evidence on record to establish that the Appellant was indeed manufacturing the said goods or getting the same manufactured from some other manufacturing unit, the burden of discharging Central Excise duty cannot be harnessed on the Appellant - I disagree with the findings of the Commissioner (Appeals) that since the Appellant (not being the manufacturer) was unable to submit documentary evidence of purchase of the impugned goods, the onus of proving the duty payment of the said goods shifted onto the Appellant. The investigating authority has neither proven that the goods were being manufactured by the Appellant nor established that the goods could not have been procured from the open market. Since, there is no evidence to the contrary, I accept the contention of the Appellant that the goods had been procured before the ban on sale of Chewing Tobacco and since the Appellant could not trade in the impugned goods pursuant to the ban, the goods were simply lying at the Appellant’s premises. Appeal allowed - decided in favor of appellant.
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