TMI Blog2016 (7) TMI 987X X X X Extracts X X X X X X X X Extracts X X X X ..... tement of raw material supplier, the transporters as also the buyers were recorded. The said statements clearly showed that the appellant was indulging in clandestine clearance of their final product. These facts further get corroborated from the fact that raw material as also the final product along with a fully manufacturing set up with power backup and employment of 12 persons including production Incharge and Supervisor was found at the time of visit of the officers. As such, we are of the view that there is sufficient material on record to establish beyond doubt that the appellant was indulging in clandestine activities. Regarding valuation, as such, Revenue has adopted MRP of one packet as ₹ 1/- and has calculated backwards. Further, if the appellant is been able to establish by production of evidence that the goods were sold at less than ₹ 1/- rate, we deem it fit to direct the lower authorities to recalculate the duty. - Decided against the assessee. - Excise Appeal No. 2634, 3355 & 3356 /2010 - Final Order No. 52428-52430 /2016 - Dated:- 12-7-2016 - Ms. Archana Wadhwa, Member (Judicial) And Mr. B Ravichandran, Member (Technical) Shri Prabhat Kum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay Trading Company was having their registered office at WZ-406, Naraina Village, New Delhi, which was also searched simultaneously. Shri Abhay Kumar Jain, proprietor was found in the said premises and on search of the same, officers recovered various incriminating documents. 4. The statement of Shri Abhay Kumar Jain was recorded on 28.11.07 wherein he admitted the fact of manufacture of Tufan gutkha at their factory located at WZ-406, Naraina Village which is owned by his wife. He also gave the details of purchase of machine, from various sources and deposed that raw material as also printed laminates was being purchased by them in cash. He gave the details of such raw materials suppliers. He further deposed that gutkha was dispatched by them either through railways or road transport and he hired vikram tempo for transportation of the gutkha through railways or transporter tempos. He further stated that their production was not regular and they were producing as and when they receive the orders for the same. The main buyers were M/s. Gulshan Stores, Delhi and Shri Suresh Khurana and Sons, Meerut. Bilties of M/s. Delhi Gondia Roadlines and M/s. Lamba Door to Door / godown servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments recovered from their premises relate to transportation of Tufan brand gutka and in respect of certain GRs where the number of packs was shown as 3, they were actually 21 and the correct number of packs was never reflected in the GRs. Usually the packs were 6 or 7 times more than the number of packs reflected in the GRs and the said activity was being done by them on instructions of Shri Abhay Kumar Jain. He also submitted that sometimes the goods were being transported under the fictitious name of M/s. Kunal Trading Company or M/s. Sethi Trading Co. The said statement of Shri Vjiya Kaushik were shown to Shri Jain who agreed with the same in his statement recorded on 2.5.2008. Further investigations were made at the end of other transporters M/s. Lamba Door to Door / godown service and statement of Shri Pankaj Suri, Manager was recorded wherein he admitted having transported the Tufan gutkha under the fictitious bill of M/s. Shill Enterprises. 7. Further investigations were made at the end of other connected parties. Shri Alok Maheshwari, proprietor of M/s. Point Marketing, Kanpur in his statement recorded on 2.5.2008 stated that his firm is engaged in the designing of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was recorded under duress and coercion; deposit of ₹ 30 lakhs was made under pressure; the raw material found in the premises was for manufacture of small quantity of samples which were removed to adjudge the market of Tufan brand gutkha ; that the statement of other person recorded by the officers cannot be taken into consideration for the purpose of holding against them, being statement of third party and the same would amount to confirmation of demand on the basis of assumption and presumption. The appellant also contended that MRP mentioned on the pouches should not be adopted for the purpose of valuation of duty and the value for the purpose of levy of duty should be 25 paise per pouch as MRP printed on the pouch read as MRP ₹ 1.00, ek ke sath ek free ; that the valuation of pouch containing up to 10 gms each of Pan Masala was required to be done under section 3(2) of the Act and not under section 4A; that some of the statements have been proved to be wrong during the cross examination inasmuch as Shri Suresh Khurana deposed during cross examination that he received 20 packets of Tufan brand Gutkha as free samples and that he may have written bags in place of packe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such, it is the submissions that their being no cogent and tangible evidence, allegation of clandestine clearance are required to be set aside. The Revenue has also not indicated the capacity of production in the factory and there is no recovery of unaccounted cash. Accordingly, he prays for setting aside the impugned order. As regards the duty quantum, he submits that the duty stands confirmed in terms of section 4A of the Central Excise Act, 1944. Even in respect of Gutkha /Pan Masala being less than 10 gms, Rule 34 (b) of the Standard of Weight and Measures (Packaged Commodities) Rules, 1977, the pouch containing goods net weight of 10 gms or less are not covered by the RST printed on the same. He also submits that they were giving three packets free with one packet of 10 gms and as such the value of one pack should be considered as 25 paise. 15. Countering the arguments, learned DR submits that the Revenue s case is not based upon only on the statements of the appellants but the same stand corroborated by the statements of various persons like the raw material supplier, the transporter as also the buyer of the goods. In the present case, the Revenue has been able to unear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required to be adjudged on the basis of evidence available in that particular case. In the present case, as already observed by us, Revenue has been able to establish the clandestine activity, by carrying out the detailed investigations at all the possible ends and by bringing out the evidence leading us to conclude that the appellant was indulging in clandestine activity. As such, it may safely be held that Revenue is able to discharge its burden, to establish the clandestine activities, placed upon them. We find that the statements of the proprietor, which were never retracted, the statement of the Supervisor, statement of the transporters, statement of raw material supplier, statement of Proprietor, statement of pouch supplier and the statement of buyer coupled with the fact of recovery of final product from the appellants factory and the recovery of incriminating documents, from the appellants office as also from GRs, bilties, recovered from the transporters premises lead us to one conclusion that the appellant have cleared the final product without payment of duty. As such, we uphold the impugned order of the lower authorities. 18. As regards the quantification of the duty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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