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TMI Blog2006 (8) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... t Rs. 44,625/- at Udaipur (Rajasthan) and Mandsaur (Madhya Pradesh) respectively on 26-10-2002. The proprietor of the assessee's unit admitted that they had clandestinely removed the Biri's under seizure without payment of duty. The proceedings were initiated against the Respondents and they paid the duty due on the seized goods. More investigations were carried out on sequence to the seizure resulting in issue of Show Cause Notices. The Original Authority in his order dated 26-6-2004 passed the following order :- "ORDER (A) The H.M. Biris 3,57,000 valued at Rs. 17,850/- and 8,92,500 valued at Rs. 44,625/- seized at Udaipur, Mandsaur (M.P.) respectively under O. R. No. 43/2003 Adjd, and 32/2003-Adjd are confiscated under Rule 25 of Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ropped the proceedings. The Revenue has come in appeal against the impugned Order-in-Appeal on the following grounds :- (1) The Commissioner (Appeals) cannot brush aside the evidence brought out regarding clandestine removal and evasion of duty in the Order-in-Original No. 14/2004, dated 26-6-2004. (2) The Commissioner (Appeals) relied on the following case laws :- (a) Oudh Sugar Mills Ltd. v. UOI reported in 1978 (2) E.L.T. (J172) S.C. (b) Pilot Industries v. CCE, Mumbai reported in 2004 (173) E.L.T. 402 (Tri. - Mum) (c) Madhu Foods Products v. CCE, Hyd. reported in 1995 (76) E.L.T. 197 (Tri.) (d) Anil Sunil Trade & Investments ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ratapgarh in his statement deposed that he does not possess document showing payment of Central Excise duty. Thus it is evident that there is a clandestine removal and evasion of duty. (ii) Statement B. Mahender Baradia recorded on 3-12-2002 and on 4-3-2003 wherein he stated that his factory M/s. Rahul Biris Factory manufacturers biri with Brand names "Golden - 99" and "Sai Sakthi Bidi", as "Raju", "Ramesh", "Mahender" and "Rajesh" for different consignments to avoid accounting in the books of his Company; that certain consignments of biris were booked by him or on his behalf by his factory worker Sri T. Venu, under fictitious consignors and consignee's names such as Raju, Ramesh, Rajesh and Mahender; that the description 'loose biris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ictitious name. (ii) The Commissioner (Appeals) has categorically held that the department has not produced any evidence to show the clearance without payment of duty during the disputed period. (iii) Even in the Order-in-Original at Para 20, the Assistant Commissioner has admitted that there is force in the submission of Respondent that after the booking of two earlier cases, the manufacturer would not venture into similar activity during the disputed period and there is no evidence produced by the Department to substantiate the allegation in the Show Cause Notice. (iv) The entire demand is based on earlier transaction. It is well settled that each transaction has to be examined on its own merit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one at Udaipur (Rajasthan) and another at Mandsaur (MP) Both the seizures were in the Railway Stations. The investigation reveals the clandestine removal by the Respondents. Two Show Cause Notices dated 13-4-2003 were issued and the adjudication process was completed. On further investigation, a follow up action was taken and the third Show Cause Notice was issued. The lower authority passed an order dated 26-6-04 imposing various penalties and demanding duty for the past period alleging the clandestine removal. The above order was challenged before the Commissioner (Appeals). The-Commissioner (Appeals) passed a very detailed order setting aside the order of the Assistant Commissioner on the ground that there is no evidence to allege the cl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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