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M/s. Kishore Tobacco Company, Shri Dinesh Chaurasia, Supervisor Versus CBC. E. Delhi-I

2016 (11) TMI 510 - CESTAT DELHI

Clandestine removal - confiscation of final product as well as raw material - goods not entered by the appellant in their RG-23 part 1 records - Held that: - by extending the benefit of doubt to the appellant, the confiscation of finished goods set aside. In as much as the goods were still within the factory premises and there was a doubt about the same having reached the RG-1 stage, confiscation of the same is bad in view of the law laid down by the Tribunal in the case of Kamal Plywood & Allie .....

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hout payment of duty of excise. The fact of non availability of any evidence read with the fact of the appellant's FIR and the resultant disclosure of the fact of presence of spurious manufacturers when taken into consideration will lead to the unsubstantiated allegation of the Revenue as regards clandestine clearances. As such by extending the benefit of doubt to the assessee, the confirmation of the demand in respect of the said goods and the imposition of penalty on both the appellants is set .....

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quot;Shiv Data". Their factory was visited by the officers of the Anti Evasion team on the 29.11.2012, who conducted various search and verifications. As a result, the officers found certain goods which were not entered by the appellant in their RG-23 part 1 records. The same were seized along with seizure of certain raw materials and packaging materials collectively valued at 14.63 lakhs approx. 2. Thereafter, the statements of various persons were recorded during the course of investigati .....

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Chewing Tobacco under the brand name of "Shiv Data" and with the address of the appellant factory. By entertaining a view that the said goods were cleared by the appellant from their factory without payment of duty, the same, totally valued at ₹ 2,79,790/- were also seized 1 , under the panchnama dated 29.11.2012. 4. On the above basis, proceedings were initiated against the appellant by way of issuance of show cause notice proposing to confiscate the excess found goods in their .....

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l excise duty to the tune of ₹ 98,633/- was confirmed in respect of the goods seized from the railway station on the findings that the same were manufactured and cleared by the appellant clandestinely. The said goods were also confiscated with the option to the appellant to redeem the same on payment of redemption fine of ₹ 90,000/-. Penalty equivalent to duty amount was imposed upon Shri Nawal Kishore, proprietor of the manufacturing unit along with imposition of penalty of ₹ .....

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ower authorities on the ground that the same were not entered in the records. The appellant have strongly contested the said finding of the lower authorities on the ground that all the raw materials were recorded in the statutory records and the finished goods had not attained finality and as such were not required to be entered in RG-1 records. The appellants have contested that the entire search was conducted on eye estimation basis, in as much as there is no evidence on record that the goods .....

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showing as to how such a huge stock of the final product was counted by the officers. The quantity alleged to be in excess is to the tune of around 8000 containers of different packets of 40 gms each and it is not possible to count so many containers in the short span of visit, without making out an inventory. The appellants have taken a stand that the containers were not finally packed and as such have not reached RG-1 stage. Otherwise, also I find that it is not the Revenue's case that the .....

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bunal in the case of Kamal Plywood & Allied Industries Pvt. Ltd. vs. CCE Meerut 1996 (82) ELT 323 (Tri) as also in the case of Indra Metal Works Vs. CCE Pune 1999 (108) ELT 745 (Tri). As regards the confiscation of the raw material, I agree with the Ld. Advocate appearing for the appellant that there is no provision for confiscation of the unaccounted raw material. Otherwise also, I find that it is the appellant's contention that the raw materials were recorded in the statutory records a .....

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and name and the address of their manufacturing unit, the appellant have taken a categorical stand that the said goods were not manufactured by them and were not cleared from their factory in as much as there is no evidence to that effect. The samples drawn from the said goods and the samples drawn from their factory manufactured good clearly show variations as regards the gross weight of the packets and the ash contents. They have also assailed to CRCL report by submitting that only one sample .....

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