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2023 (10) TMI 805 - CESTAT KOLKATAClandestine manufacture and clearance of excisable goods - unmanufactured tobacco - actual manufacturer of the unmanufactured tobacco - levy of penalty u/r 26 on Shri Suresh Prasad Sah, Appellant 2 - HELD THAT:- From the documents available, it is clearly established that the lease agreement was a bogus one. Shri Suresh Prasad has impersonated another person and introduced him as Shri Mahesh Prasad before the Notary. Mahesh Prasad is non existent. There is no evidence that Shri. Gautam Kushwaha was in any way connected with the manufacturing activity. Thus, it is found that the department has considered Appellant 1, the owner of the premises as the manufacturer of the goods found in the said premises. Evidence available on record to implicate Shri Krishna Kumar as the manufacturer - HELD THAT:- Appellant 1 has made a genuine lease agreement and leased out the property on a monthly rent of Rs.6000/. The department has verified the genuineness of the lease agreement from the Notary and found that the lease agreement executed by him was genuine - there is no material evidence available on record to establish that he is directly involved in the manufacturing activities. There is no evidence that the machines were purchased in his name. There is no evidence that he has purchased raw materials from the market using cash. The goods has not been physically cleared to any customers. In the absence of any such evidence, we hold that Appellant 1 cannot be held as the manufacturer of the goods found in the premises rented out by him. Levy of penalty under section 26 of the Central Excise Rules 2002 on Shri Suresh Prasad Sah, Appellant 2 - HELD THAT:- It is observed that his involvement in the clandestine manufacture and clearance is very well established by his own admission. He is also involved in introducing a non-existence person Shri Mahesh Prasad before the Notary for executing the lease agreement. Accordingly, he is liable for penalty under section 26 of the Central Excise Rules 2002. Accordingly, the penalty imposed on Shri Suresh Prasad Sah is upheld. Appeal disposed off.
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