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2023 (11) TMI 152 - AT - Central ExciseClandestine removal - Who is the manufacturer liable for payment of duty under Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 - seizure of two Pouch Packing Machines [PPM] found installed in the premises of M/s Laxmi Tobacco Company, during search of the said Premises by the Central Excise officers on 19.09.2013. HELD THAT:- There is no dispute on the facts that on a specific information, Central Excise Officers have detected an unregistered factory on 19.09.2013, where 2 Pouch Packing Machines [PPM] were found installed and in working condition, manufacturing notified goods i.e. "Pan Masala Containing Tobacco" known as "Gutkha". Some notified goods, raw materials and packing materials totally worth Rs. 15 lakhs required to manufacture such "Gutkha" were also found lying there, which are seized on 19.09.2013. Both the sides have fairly agreed that said unregistered factory has not followed Rules or paid duty under Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 in respect of 2 pouch packing machines [PPM] found installed at the premises of M/s Laxmi Tobacco Company on 19.09.2013. There is no clinching tangible evidence or any corroborative evidence against Appellant Shri Paresh R Amin to connect him with actual manufacture and also to establish him as a manufacturer. Thus, Shri Paresh R Amin cannot be treated as the manufacturer liable to duty, interest and penalty in this case. However, the facts of seizure of two PPM found duly installed and goods seized in the premises on 19.09.2013 also have to be considered independently even without the support of any such of statements - It is not acceptable that owner of any premises would allow any third party to enter his premises to carry on business, may it is for the licit or the illicit business by any such third party. Any person with reasonable prudence will at least prepare a written rent agreement and clear evidences of rent receipts to keep his skin safe of any such illicit business, if any. Shri Purshottambhai C Patel is father of Shri Ashwinbhai Patel and in their Father-Son relation partnership document may not be necessarily prepared at all times. In view of the undisputed fact that there is no partnership deed between the appellant Shri Pareshbhai R Amin and Shri Ashwinbhai Patel, factory premises was not rented out to so called partnership firm as there was no rent agreement or payment of rent, the machines were not found purchased by the so called partnership firm or even Shri Pareshbhai R. Amin, the goods were cleared on the letterhead of Laxmi Tobacco Company etc, it cannot be said that the appellant is the manufacturer therefore even if the fact of clandestine manufacture and its clearance is established but the appellant not being manufacturer, liability of duty, penalty cannot be fastened against the appellant. The impugned order confirming demand of duty with interest and Penalty is not sustainable against the Appellant Shri Paresh Ramanbhai Amin - The impugned order-in-original qua Shri Paresh Amin is set aside - Appeal of Appellant Shri Paresh Ramanbhai Amin is allowed - Appeal disposed off.
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