TMI Blog2016 (7) TMI 891X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and/or opportunity of hearing. - Decided partly in favor of assessee. - Excise Appeal No. 55427/14 - Final Order No. 70179/2016 - Dated:- 9-5-2016 - Mr. Anil Choudhary, Member (Judicial) Shri Rupesh Kumar Shri Aditya Kumar, both Advocates for the Appellant Shri Pawan Kumar Singh, Supdt. (A.R.) for the Respondent ORDER The appellant, being a manufacturer of pan masala and gutka (Rajshree Brand) is in appeal against order in appeal dated 04.08.2014 passed by the Commissioner (Appeals), Customs, Central Excise and Service Tax, Lucknow. 2. The brief facts are that the appellant is paying tax on the basis of production capacity 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 25 of CCR and further penalty was proposed under Rule 25 read with Section 11 AC of the Act. 3. The appellant appeared and contested the show cause notice, stating that they ae paying duty under Section 3A of the Central Excise Act, read with Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008. It was further contended that provisions of Rule 25 of CCR are not applicable in the appellant s case since Rule 17 (1) of Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008, contains the provision for confiscation. Further, the Rule 18 of Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008, clarifies that the provisions of the Act Central Excise Rules shall apply mutatis mutandis including Rules of CCR, 2002 which relates to maintenance of daily stock account, removal of goods and invoice, filling of returns and recovery of dues. It is further contended that as Rule 25 is not applicable on them, packing materials cannot be confiscated being the raw materials or inputs of the appellant. It was further contended that even on the plain reading, Rule 25 is not applicable to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustment of granules, the raw materials of laminates. Further, adverse view was taken in view of non-cooperation of the appellant and its Directors in the process of investigation. 4. Being aggrieved 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 appellant has reiterated the grounds raised before the court below and further stated that it is evident from Annexure A-SCN that the packing materials detained and subsequently seized includes both the materials purchased in U.P. and packing m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant. 6.2 The Id. Counsel of also relied on the rulings in the cases of (i) Kashi Laminators (P) Ltd. Vs. Commr. of Central Excise, Lucknow : 2014 (314) ELT 327 (Tri.-Del.), wherein it was held that for excess stock of inputs, penalty under Rule 25 was not sustainable ; (ii) A. Tajudeen Vs. Union of India : 2015 (317) ELT 177 (SC), wherein it was held that the retracted statement is not reliable, without independent corroboration. 7. The Id. AR for revenue relies on the impugned order. He further states that the appellant being a registered manufacturer, was required to explain the licit acquisition or purchase of the packing materials which they have failed to do so. Further there is admission made by Director cum Manager of M/s Vinay Wires Poly Products Pvt. Ltd. It is further contended that goods/inputs found, non-duty paid, which are otherwise dutiable, the same can be confiscated. He further relies on the ruling in the case of Amad Noormamad Bakali Vs. State of Gujarat : 2011 (274) ELT 17 (Guj.) wherein it was held that statement recorded by Revenue Officer is admissible in evidences as the same is not recorded before the police and not hit by Sections 34 or 30 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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