TMI Blog2009 (12) TMI 814X X X X Extracts X X X X X X X X Extracts X X X X ..... 38/- was found, which was accepted by the appellant and the entire duty was paid by the appellant at that time. The officers at that time also found a tanker No. RJ-04G-2374 in the factory premises. The tanker was found to be loaded with Crude Palm Oil. On enquiry, the appellant informed that the crude palm oil had been purchased from M/s. Newal Chand Mohan Lal Jain. An enquiry was made with Shri Rajnish Jain, Director of M/s. Newal Chand Mohan Lal Jain, who confirmed having sold 24.91 m.ts. of the crude palm oil of edible grade to the appellant and they also clarified that the crude palm of edible grade sold to the appellant was out of the oil imported at Kandla and cleared under Bill of Entry No. 15115 dated 23-9-04. As per the statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section on Shri Girdhari Lal Goel, partner of the appellant company, M/s. Newal Chand Mohan Lal Jain Pvt. Ltd., Shri Rajnish Jain, Director of M/s. Newal Chand Mohan Lal Jain and Shri Asla Ram, Driver of the seized tanker. 2. The show cause notice was adjudicated by the Jt. Commissioner vide order-in-original dated 31-8-06 by which - (a) Central Excise Duty demand of Rs. 15951/- on 12 m.t. of Vanaspati found short at the time of officers visit was confirmed along with interest on it at the applicable rate and besides this, penalty of equal amount was imposed on the appellant company under Section 11AC of Central Excise Act; (b) the seized crude palm oil and the tanker was ordered to be confiscated under the provisions of Customs Act, 196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht from Kandla in another tanker upto Delhi and at Delhi, the same had been transferred to the tanker No. RJ-04G-2743, which was found in the appellant s factory. (2) The only basis on which the Department alleges that the oil found to be in the appellant s factory has been illicitly imported without payment of duty, is that according to the Department, on chemical test of the samples drawn from the oil, the same was found to be of inedible grade, while Shri Rajnish Jain, Director of M/s. Newal Chand Mohan Lal Jain (P) Ltd. in his statement had stated that they had imported and sold only the edible grade palm oil. The test reports of the Department are not reliable, as the appellants were informed about the test report only when they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han Lal Jain admittedly had imported edible grade palm oil under Bill of Entry No. 15115, the seized oil cannot be said to be the one which had been imported by M/s. Newal Chand Mohan Lal Jain under Bill of Entry No. 15115; that no document regarding illicit import of the seized oil has been produced by the appellant and that in view of this, the seized palm oil has been rightly confiscated along with tanker and duty has been rightly demanded in respect of the same. He also pleaded that the shortage of 12 m.t. of Vanaspati has been admitted by the appellant and duty had been paid by them and since this is a case of clandestine removal, penalty has been rightly imposed on them under Section 11AC. 5. I have carefully considered the submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chemical Examiner reporting the samples to be of inedible grade cannot be accepted. Other than the test report, there is no evidence that the seized oil had been illicitly imported without payment of duty, while the goods not being notified under Section 123 of the Customs Act, 1962, the burden of proving that the same are of smuggled origin is on the Department. In view of this, neither the duty demand in respect of the seized oil nor its confiscation and nor the confiscation of the tanker under the provisions of Customs Act, 1962 is sustainable and hence the same are set aside. For the same reason, the penalty on the appellant under the provisions of Section 112 of the Customs Act is also set aside. As regards the duty demand of Rs. 1595 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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