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TMI Blog2016 (7) TMI 891X X X X Extracts X X X X X X X X Extracts X X X X ..... pacity under the Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008. A search was conducted in the premises of one M/s Vinay Wires & Poly Products Pvt. Ltd. Unit 1 & 2, Kanpur and other related establishments including that of this appellant, M/s K.P. Pan Products Pvt. Ltd., Lucknow and one M/s Kanan Graphics (P) Ltd., Kanpur. The physical stock of raw material/inputs was taken at the time of search in the premises of the appellant. A total stock of 13,440.55 Kgs. of Rajshree brand laminates and outers carry bags and laminated pouches were found in the factory. As there was no responsible person present in the factory to explain the licit source of purchase and entry in the stock records, the stock of la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the name of BKG Enterprises, Kanpur and after receipt of the material by the appellant, the said invoices were returned and the same were destroyed by M/s Vinay Wires & Poly Products Pvt. Ltd., Kanpur and/or used for issue of duplicate invoices under the same invoice numbers for removal of granules as such. Further, it appeared to Revenue that the whole stock detained and seized, valued at Rs. 17,35,244/- is liable for confiscation being packing materials which were removed and cleared by Vinay Wires, clandestinely purchased by the appellant and others and accordingly, it was proposed to confiscate the packaging materials involving the Central Excise duty of Rs. 1,42,984.10 under Rule 25 of CCR and further penalty was proposed under Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record to prove that he goods seized have actually been manufactured and cleared by M/s Vinay Wires & Poly Products Pvt. Ltd. and further the same have been cleared without payment of duty. The whole case is made only on presumption and on the basis of the statement of Mr. C.N. Malviya, Director of M/s Vinay wires & Poly Products Pvt. Ltd. It was further contended that Mr. Malviya had immediately, within less than 7 days, retracted his statement and as such, no adverse inference can be drawn on the basis of retracted statement. Further, no documents have been brought on record by Revenue in support of its case of clandestine purchases by the appellant. It is further contended that pursuant to completion of investigation by DGCE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant preferred appeal before the Id. Commissioner (Appeals) who vide the impugned order, have been pleased to uphold the confiscation under Rule 25 of CER but at the same time, it is held that penalty is not imposable under Rule 25 and have imposed a penalty of equal amount under Rule 26 of CER. 5. Being aggrieved, the appellant is in appeal before this Tribunal. On the basis of the grounds urged by the Id. Counsel for the appellant, the issue before this Tribunal is - whether penalty have been rightly imposed under Rule 26 by Id. Commissioner (Appeals) and whether when penalty under Rule 25 have been held to be unsustainable, whether the confiscation of the packing materials have rightly been upheld. 6.1 The Id. Counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued to M/s Vinay Wires & Poly Products Pvt. Ltd., alleged supplier of the packing materials, was pending adjudication, hence prior adjudication of appellant, have resulted into miscarriage of justice. As the findings in the case of M/s Vinay Wires & Poly Products Pvt. Ltd. will have a direct bearing on the adjudication in the case of this appellant. It is further contended that the case of revenue is based on computer printout alleged to have been taken out from the computer of one - M/s Anand Sales, Kanpur, whose premises was also searched on 30/6/09 along with M/s Vinay Wires & Poly Products Pvt. Ltd.. On the basis of the print outs, a number of show cause notices were issued arising from same investigation and some of these were decide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in evidences as the same is not recorded before the police and not hit by Sections 34 or 30 of the Indian Evidence Act, 1872. Moreso, as the contentions regarding coercion and threat had been considered and rejected. 8. Having considered the rival contentions, in view of the provisions of Rule 25 read with Rule 10 of CER, it is evident that the appellant being a manufacturer and a registered dealer, is required to maintain proper account of duty paid inputs or of inputs which are excisable. As clause (b) of Rule 25 provides that where the assessee does not account for any excisable goods produced or manufactured, then the said goods shall be liable to confiscation and such purchasers or manufacturer or registered person shall also be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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