TMI Blog2011 (5) TMI 896X X X X Extracts X X X X X X X X Extracts X X X X ..... supari falling under tariff item no. 24039990, 24039930 and 210690.30 of the first schedule to the Central Excise Tariff Act, 1985 respectively. HE is registered with the Central Excise department and has registration No. AABPH1170M-XM001 in Nipani range of Belgaum Commissionerate. HE is a partnership firm with S/Sri. Alsam H. Tamboli, Ibrahim alias Baba H. Tamboli, Hasanbhai Tamboli and Smt. Roshanbanu as partners. The head office of the firm is situated in Satara of Maharashtra state. Based on intelligence gathered by the officers of the Directorate General of Central Excise Intelligence about clandestine clearance of 'Hira' branded gutkha, manufactured by the said manufacturer with the active involvement of certain dealers, searches were carried out at factory premises along with business related premises of the said manufacturer and of the distributors. Certain incriminating records/documents were seized under mahazars in addition to 65 kg. of packing material of Hira gutkha, in rolls contained in two carton boxes, valued at ₹ 10,075/- from the factory premises of HE on 8.3.2004, a computer system containing data regarding sale of Hira gutkha from the premises of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ai Associates recorded daily by DA. Files retrieved from a computer seized from the premises of DA contained statements of expenses which reflected payments to HE. Proceedings before the Commercial Tax Authorities of the Karnataka State involving seizure of 40 gunny bags of Gutkha from one Shri Palani were also relied on. The Commissioner found that 65 kgs of unaccounted packing material seized on 12.09.2003 from HE was intended for clearing gutkha manufactured without payment of duty and accountal. He relied on the statements of various persons manning the retail shops from where quantities of gutkha were seized to hold that they had dealt in non duty paid gutkha knowing that they were liable to confiscation. After due process of law, the Commissioner passed the following order:- ORDER (a) I confirm the demand of Central Excise duty of ₹ 4,60,65,669/- (Rupees Four Crores Sixty Lakhs Sixty-five Thousands Six Hundred and Sixty nine only) along with interest under the proviso to sub section (1) of section 11A and the section 11AB of the Central Excise Act, 1944 respectively, in respect of Hira gutkha removed during the years 2002-03 and 2003-04 as mentioned at Para (20) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, I allow them to redeem on payment of fine of ₹ 125/- and ₹ 2500/- respectively in terms of section 34 of Central Excise Act, 1944. In this regard, the persons from whom the said goods have been seized are required to exercise their option to redeem the goods with the Additional Director General, Director General Central Excise Intelligence, Bangalore within one month from the date of receipt of this order and to pay the fine within two months from the date of receipt of this order, failing which the properties would vest with the government. (f) I impose a consolidated penalty, equal to the duty determined as above, of ₹ 4,60,65,669/- (Rupees Four Crores Sixty Lakhs Sixty-five Thousand Six Hundred and Sixty none only) in terms of Section 11AC of the Central Excise Act, 1944 read with Rule 25 of Central Excise Rules, 2002, on M/s, Hira Enterprises, Nippani. (g) I impose penalty of ₹ 25,00,000/- (Rupees twenty five lakhs only) on Sri Ibrahim H. Tamboli, Managing Partner of M/s. Hira Enterprises, under Rule 26 of Central Excise Rules, 2002. (h) I impose penalty of ₹ 5,00,000/- (Rupees five lakhs only) on Sri P. Radhakrishna, Partner of M/s. D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t raising invoice for sales of gutkha could not lead to an inference that the manufacturer had cleared gutkha without payment of duty. It was not established that HE had cleared the gutkha without payment of duty. The Commissioner had relied on statements of Shri A. Madhusudan of DA and Shri T.S. Nanjundeswara of M/s. Lakshmi Traders, Bellary to hold that HE had cleared gutkha without payment of duty. It is submitted that these persons had immediately retracted their statements. Moreover, no reliance could be placed on the records seized from a third party to draw adverse inference against the assessee manufacturer in the absence of evidence to show movements of goods from premises of the assessee to that party. The daily sales reports were not in the nature of independent, cogent and tangible evidence and they were therefore not reliable. 5.3. Computer Print-outs: The reliance placed on the material retrieved from the computer seized from DA is challenged on the basis that the print outs did not satisfy the conditions prescribed in Section 36(B) (2) of the Central Excise Act, 1944 (the Act). The assessee has reproduced the subject prescriptions to rely on the same. It is submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Goods were mentioned only as masala saunf/sweet masala saunf in the Railway Receipts and not as Hira branded gutkha; (iii) The Department had not interrogated any of the persons, who had either booked the consignments with the Railways or who had taken delivery of such goods from the Railways. (iv) The Department had also not interrogated any of the authorities of Railways to bring out the factual position. (v) None of the names mentioned in the Railway Receipts was that of the employees of HE. (vi) None of such Railway Receipts was recovered from the premises of HE. (vii) No goods were either detained or seized from the possession of Railways to prove that the goods had originated from HE. (viii) The department could not also adduce any evidences like unaccounted raw material purchase, higher consumption of electricity and labour engagement, suppression of production, payments made to the Railways for unaccounted clearances and receipt of unaccounted sale proceeds by HE to prove the allegation. The railway receipt copies had not been furnished to the appellant; only an abstract of the same was provided despite request by the appellant. The Commissioner enter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andestine production attributing to balance 20%. Such estimation, based on a formula, ascertained for a particular period could not be accepted as held by the Tribunal in Parle Beverages Pvt. Ltd. vs. CCE [1999 (114) ELT 872]. A total duty of ₹ 15,120/- was demanded in respect of the goods covered by show-cause notice dated 03.09.2004. 6. During hearing, the learned counsel for the appellants reiterated the grounds stated in the appeal. 7. It is submitted that the admission by DA that the 13 railway receipts recovered from their premises had covered gutkha and not saunf was retracted within six days on 14.03.2004 before the Magistrate. 340 RRs emanating from Ghataprabha and Ugarkhurd railway stations were held to have covered 11,000 bags and 50,000 kgs of gutkha. Though the RRs had covered transport of saunf and sweet saunf, the discrepancy in the description had not been investigated by the railway authorities. A major portion of the goods involved were consigned to Hubli and no investigation was conducted at Hubli. The learned counsel submitted that the case of the Revenue was that DA exclusively dealt in Gutkha. However, the statement of expenses retrieved from the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence. He further submits that HE had 10 times as much capacity as its accounted production. This was evident from the relevant bank statement pertaining to the account of HE. The learned Special Counsel relies on preponderance of probability and related case-laws to support the Commissioner's findings. 9. In his rejoinder, the learned counsel submits that a nominal penalty of ₹ 10,000/- was imposed on Shri Nanjundeswara who operated close to Hubli where most of the consignments covered by the RRs recovered by the Department was disposed. 10. We have carefully examined the case records and studied the rival submissions. The main appellant M/s. Hira Enterprises, Nipani, is engaged in the manufacture and clearance of 'Hira' and 'Baoba' brand panmasala (gutkha) subject to duty of excise under Chapter Sub-heading 2403. During searches conducted at the premises of Hira Enterprises and at the premises of its main distributor M/s. Dwarakamai Associates, Bangalore on 08.03.2004 and the premises of M/s. Lakshmi Traders, Bellary, M/s. Parag House, Kolar and M/s. Balaji Provision Stores, Chintamani on the ensuing days, the departmental authorities seized 65 kg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it did not match with the invoices issued for sale of gutkha by HE. 65 kgs. of packing materials seized from the factory of HE and the seizure of gutkha from premises of various dealers were other evidences relied on by the Commissioner in finding clandestine clearance by HE. 10.2 As regards the quantities of gutkha seized from M/s.Lakshmi Traders, M/s. Balaji Provision Stores and M/s. Parag House, the Commissioner observed that they had utterly failed to establish the licit possession of the same . These facts led to the 'strong reasonable belief in respect of the clandestine clearance of Hira gutkha'. As regards the excess 65 kgs of packing material compared to the accounted stock, the Commissioner rejected the explanation of the assessee that the excess arose owing to the authorities taking into account also the weight of cones on which the packing material was wound. The Managing Partner, HE, had not denied the excess stock at the time of its seizure. Therefore, the intention of the said manufacturer of indulging in clandestine manufacture has been substantiated . 10.3. We observe that the Commissioner's finding that the small quantities of gutkha seized fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 Raja Narayan Bangalore 06.12.2003 901625 25 Vijay Jaffar Banqalore 06.12.2003 901626 25 Jairao Ayub Bangalore 09.12.2003 901764 25 Arif Sudhir Bangalore 11.12.2003 901689 25 Sudeep Umakant Bangalore 11.12.2003 901690 25 Munna Munna Bangalore 16.12.2003 901762 25 Ramanna Savanth Bangalore 16.12.2003 901763 25 Karimulla Subhan Bangalore 18.12.2003 901786 25 Mahesh Ayub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 2800*2000 5,600,000.00 6,493,678.00 Shiva Prasad Hawala (16-7-2003) 3,000,000.00 3,493,678.00 25-6-2003 D.D. No.146275 500,000.00 2,993,678.00 Commission 2800*200 560,000.00 2,433,678.00 Transportation Charges 2800*40 112,000.00 2,321,678.00 Salesmen Expenses Tumkur 5*40*200 40000 Pavgada ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... veracity of the statements relied on in issuing the show-cause notice was, therefore, rightly challenged by the counsel for the assessee. DA was also dealing in cigarettes. 10.8. Reliance on the statement was questioned on the basis of provisions contained in Section 36B(2) of the Central Excise Act. These provisions read as follows:- SECTION 36B(2) Admissibility of micro films, facsimile copies of documents and computer print outs as documents and as evidence. (1)....................... (2) The conditions referred to in sub-section (1) in respect of a computer print out shall be the following, namely:- (a) the computer print out containing the statement was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; (b) during the said period, there was regularly supplied to the computer in the ordinary course of the said activities, information of the kind contained in the statement or of the kind from which the information so contained is derived; (c)throughout th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gutkha halfheartedly in the absence of any reliable material of evidentiary value. He read the entry 2800*2000 = 5,600,000.00 in the expense statement retrieved from the computer as representing payment for purchase of Hira brand gutkha from HE by Dwarakamai Associates, similarly without evidence. He observed that apparently, during the said period, accounted purchases from HE was only 270 bags of Hira gutkha to arrive at the finding. 10.12. The person who operated the computer for data entry could not be located. This person by name Shri Narasimhalu was not produced for cross-examination by the appellants. Before the Commissioner, the personnel of DA was cross-examined when it was averred that the said computer was in the use of one Shri Manoj Pola, an MBA student and son of one of the employees of DA, However, the Commissioner concluded that the said computer had been installed in the premises of DA and was in regular use of the business activities of DA. This finding is also without proper basis. 10.13. As regards 125 empty cotton bags valued ₹ 500/- seized from Parag House confiscated under Section 118 of the Customs Act, the finding is that the same had been used ..... X X X X Extracts X X X X X X X X Extracts X X X X
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