TMI Blog2016 (11) TMI 1100X X X X Extracts X X X X X X X X Extracts X X X X ..... sustainable. Appeal allowed - decided in favor of assessee. - Excise Appeal No. E/2284-2285, 2311/2006-Ex [SM] - Final Order No. 54937-54939 /2016 - Dated:- 11-11-2016 - Mr. S. K. Mohanty, Member (Judicial) Mr. Manish Saharan (Advocate) for the Appellant Mr. Dharam Singh (DR) for the Respondent ORDER Per S. K. Mohanty These Appeals are directed against the impugned Order dated 31.03.2006 passed by the Commissioner of Customs Central Excise (Appeals), Indore and have been filed by M/s Shivani Detergents Pvt. Ltd., Director Shri Naresh Bagani and Shri Mahesh Karambelkar. Duty demand of ₹ 8,86,822/- with equal amount of penalty has been imposed upon M/s Shivani Detergents and a penalty of ₹ 50,000/- has been imposed upon its Director Shri Naresh Bagani. A Further penalty of ₹ 50,000 has been imposed upon Shri Mahesh Karmbelkar. 2. Brief facts of the case, leading to this appeal, are as follows : 2.1 The Appellant unit is engaged in manufacture of Sargam Brand Detergent powder Cake. They were issued show cause notice dt. 23.04.2003 alleging clandestine removal of final product by M/s Shivani Detergents. It was alleged that the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y confirmed the demands with penalties, as proposed in the show cause notice, upholding charges of clandestine removal. He also ordered for confiscation of goods found in excess in the appellant s unit and imposed redemption fine of ₹ 5,000/-. 5. The Appellant filed appeal before Commissioner (Appeals) who upheld the charges of clandestine removal but reduced the demand by granting benefit of cum-duty value. The Commissioner (Appeals) confirmed the demand on the ground that from the chart containing details of LRs under which the Appellant Unit has allegedly cleared the goods without payment of duty, it is seen that the name of the consignor is mentioned as Same . This Chart contains the details of the Detergent powder and cakes, transported through different LRs, to various parties in Maharashtra. The transporter, in his statement dt. 26.1.02002 has stated that in the LRs, in which the description of goods is mentioned as Detergent powder and cake but consignor name is not mentioned, the same relates to the goods of Appellant Unit. That obviously these are the goods which were transferred by M/s Shivani to their office at Indore and then sold to the parties in Maharasht ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt proved that Shri Karmbelkar is not an employee, the demand was confirmed on the basis of LRs of M/s ARCO. He submits that the demand based upon LRs is not sustainable on mere assumption that all the LRs which show transportation of Detergent Powder and Cake, containing the name of Consignor as same , pertain to goods cleared clandestinely by Appellant firm. Also there is no evidence that the goods are even Sargam brand Detergents and Cake, and were cleared by the Appellant Unit. That the statement of transporter cannot be relied upon in isolation, without any corroborative evidences. That in all the LRs, neither the consignor s name is mentioned nor proper description of goods is furnished. The LRs without consignor name cannot be assumed to be of the Appellant firm. That the transporter being third party, his record and statement cannot be relied upon in isolation. He further submits that none of the buyers of the goods, in their statement has stated that the goods purchased from M/s Karmbelkar was on account of M/s Shivani. 5.2 He submits that the show cause notice is issued with the assumption that M/s Dolphin was not authorized to sell the goods outside Madhya Pradesh, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity and the Commissioner (Appeals) have not negated the submission of Appellant firm that Mahesh Karambelkar is not their employee, which clearly shows that he is an independent trader. That though reliance has been placed upon records seized from house of Shri Mahesh karambelkar containing the name of M/s Dolphin, the same have not been considered. Since the papers are stationary of Dolphin, it shows that he was selling goods of M/s Dolphin. That as may be seen from the statement of buyers whose statements were relied upon, Shri Fatehchandani in his statement dt. 25.03.2003, stated that Shri Karambelkar introduced himself to Shri Fatehchandani as a trader of Detergents. That Chandak Trading Company who got issued the DD in name of Shri Karambelkar, does not prove that the goods were cleared clandestinely by Appellant firm. That Shri Rajesh Valecha in his statement accepted that M/s Dolphin booked goods. That Shri Anil Puruswami clearly stated that they are purchasing goods from Shri Karamblkar. That even though amount from the bank account of Shri Karambelkar was withdrawn by some other person, it does not support revenue s allegation. That the show cause notice does not show any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he goods were cleared from the Pithampur factory of the Appellant unit to M/s ARCO transport, which are located 30 kms away at Indore. I further find that none of the buyers has recognized Shri Mahesh Karmbelkar as person representing M/s Shivani. I further find that the findings of the lower authorities are based on the statement of the transporter. Even the said transporter has not named any person or Shri Mahesh Karambelkar as consignor of such goods. In such a case, it cannot be held that the goods belonged to M/s Shivani Detergents. Further, no record has been found at the Appellant unit, which can show their involvement in the alleged clandestine clearance. I find that no evidence of excess procurement of raw material/ packing material and any other corroborative evidence brought on record, to show involvement of M/s Shivani Detergent in clandestine removal. The statements of buyers of goods also do not show any involvement of M/s Shivani in clearance of goods. Further, it is also not appearing as to how the amount deposited in bank account of Shri Mahesh Karambelkar was received by M/s Shivani. In such circumstances, I hold that no case is made out against the Appellant M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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