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2016 (3) TMI 478 - CESTAT NEW DELHI

2016 (3) TMI 478 - CESTAT NEW DELHI - 2016 (333) E.L.T. 155 (Tri. - Del.) - Confiscation of packing material kept in unregistered premises - case of the appellant that no credit was taken on any of the packing materials; due records have been kept - Commissioner (Appeals) held that confiscation is not sustainable, however, he upheld the penalty - Held that:- We find the said confiscation is in respect of packing materials which were kept in the unregistered premises opposite to the appellants u .....

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fiscation of these chewing tobacco on the ground that the same were not mentioned in the stock register and no document was produced in this regard - Held that:- The appellants have submitted that out of these 399 bags, 165 bags were duly entered on page 107-109 of the stock register of duty paid godown, the same were received under proper invoices and bills. The said stock register was maintained in the nearby office. The remaining 234 bags were received back from the market and were unfit for .....

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payment or clandestine clearance of such goods from the factory premises, order of confiscation and penalty under Rule 25 is not sustainable. No evidence was attributed for any clandestine or unaccounted clearance of these goods from the appellant’s unit.

Seizure of 203 bags of chewing tobacco from the premises of M/s.Kushboo Impex Pvt.Ltd - Held that:- The appellants plea is that identical goods were also manufactured by M/s.Shakti Packers and Shri Singhal in his statement dated 4. .....

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gs. The case on this issue will fail both on legal and factual basis.

Seizure of 127 bags of chewing tobacco from the premises of M/s.R.P.Agencies - Held that:- We find that no notice has been serviced to M/s.R.P.Agencies, though, the goods were seized from their premises and custody. In fact the proceedings for confiscation of goods, if any, in the above two issues is to be directed against the owner of the said goods. The appellants only were served notice for confiscation of these .....

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For the Respondent : Shri R.K.Mishra,DR ORDER PER: B.RAVICHANDRAN These are appeals against order dated 10.09.2008 of Commissioner (Appeals), Delhi-II. The main appellant (M/s. Shakti Zarda Factory (India) Pvt. Ltd.) are engaged in the manufacture of chewing tobacco liable to Central Excise Duty. Certain investigations were carried out by the Central Excise Officers after searches in various premises on 4.8.2005. A show cause notice dated 27.1.2006 was issued to the main appellant and Manager of .....

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duty in the show cause notice and no determination of any duty liability in the proceedings of the lower authority. The seizure, confiscation and penalty are not sustainable under any provisions of central excise law. There are four issues on which action was taken against appellant: (a) Packing material kept in unregistered premises (b) Chewing tobacco kept in duty paid godown without accounts (c) Chewing tobacco found in the premises of dealer after unaccounted clearance (d) Chewing tobacco fo .....

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scharged at the time of redemption of confiscated goods on payment of fine. 5. We have heard both sides and examined the appeal records. We find that neither show cause notice nor order issued by the lower authority proposes or confirms any central excise duty on the appellant. Of the five charges made in the show cause notice dated 3.2.2006, four relates to confiscation of various seized goods and fifth one relates to imposition of penalty under section 11AC of the Central Excise Act,1994 read .....

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cation is not sustainable, however, he upheld the penalty. We find that Rule 25 talks about contravention relating to excisale goods and contravention of Rules with intent to evade payment of duty. In the present case, packing materials are not excisable goods on which duty is liable to be paid by the appellant and hence we find that the lower authorities are in error for imposing penalty without specifying the nature of violation which will attract such penalty. 7. Next issue is relating to che .....

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by office. The remaining 234 bags were received back from the market and were unfit for consumption. We find that the appellant categorical assertion regarding availability of stock records for a part of the goods in their office records kept nearby and remaining goods being returned as unfit for consumption has not been duly considered by the lower authority. The contentions were rejected by the Commissioner (Appeals) as an afterthought. We find that the appellants have filed documents regardin .....

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based on the statement of Shri Sanjeev Singhal, director of M/s.Kushboo Impex Pvt.Ltd.. The appellants plea is that identical goods were also manufactured by M/s.Shakti Packers and Shri Singhal in his statement dated 4.8.2004 did indicate that the same items might have been received from the M/s.Shakti Packers. We find that no cross verification was made on that and further no notice has been issued to M/s.Kushboo Impex from whose premises and custody the goods have been seized. Even the owners .....

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