TMI Blog2017 (2) TMI 618X X X X Extracts X X X X X X X X Extracts X X X X ..... 54, 1231/07 - A/85235-85238/17/EB - Dated:- 5-1-2017 - Mr Ramesh Nair, Member (Judicial) And Mr. C.J. Mathew, Member (Technical) Shri. Jaikumar, Advocate with Shri. Kartik Jindal, Advocate and Shri. Ganesh R.S. Iyer, Advocate for the Assessees Shri. Ashutosh Nath, Asstt. Commissioner(A.R.) for the Revenue Per : Ramesh Nair These appeals are directed against Order-in-Original No. 17/CEX/2006 dt. 30.11.2006 passed by the Commissioner of Central Excise, Pune. The Appeal No. 252 to 254/07 has been filed by M/s Hira Enterprises, Shri Aslam Hashambhai Tamboli, Shri Mohammed Arshad against the demand of ₹ 31,50,575/- and penalties imposed whereas the Appeal No. E/1231/07 has been filed by the revenue against dropping of demand of ₹ 77,90,388/-. 2. The fact of the present case is that M/s Hira Enterprises is engaged in the manufacture of Hira and BaOba brands of Gutka, Hira brand of Pan masala Mawa. The revenue officers conducted searches at factory premises of M/s Hira Enterprises. Searches were also conducted at premises of dealer M/s Super Trader at Mumbai and Bhiwandi which led to recovery of sheets alleged to be containing details of quantity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- on the ground that charge of sale of the goods in excess of invoiced quantity is not proved and hence does not sustain. However a demand of ₹ 7,70,475/- was confirmed on the ground that the transactions are not covered by and invoices and are clandestine removals. Further a demand of ₹ 23,79,600/- was confirmed on the ground that the transactions are also not covered by the invoices and hence the same are clandestine removal by M/s Hira Enterprise. Further penalty was also imposed upon main assessee. A penalty of ₹ 25000/- was also imposed upon Shri Aslam Hashnbhai Tamboli, Partner of M/s Hira Entrerprise and of ₹ 10,00,000/- upon Shri Mohd. Arshad, Proprietor of M/s Super Trading. Aggrieved by the impugned order M/s Hira Enterprise, Shri Aslam Hashnbhai and Shri Mohd. Arshad has filed Appeal Nos. E/252 to E/54 of 2007 against the demand and penalties and Revenue filed Appeal No. E/1231/07 -MUM against setting aside of demand of ₹ 77,90,388/- and also seeking penalties. 3. Shri. Jaikumar, Ld. Counsel with Shri. Kartik Jindal, Advocate and Shri. Ganesh R.S. Iyer, Advocate appeared on behalf of the assessees. Ld. Counsel for the assessee submits th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority to confirm demand. He further submits that in case of goods seized during investigation the confiscation of seized goods from premises of M/s Super Trading was proposed and same was confirmed by the adjudicating authority. That the Commissioner (Appeals) set aside the order-in-original vide order - in - appeal dt. 18.08.2004. That on filing appeal by the revenue against the said O-I-A the Tribunal remanded the matter back to the Commissioner (Appeals) who vide Order-in-Appeal dt. 27.11.2007 set aside the confiscation of goods and penalties on the ground that allegation of clandestine removal is far fetched as it is not required by law that the dealer should keep the invoices with them all the time. That whereas Shri Arshad in his statement dt. 27.08.2002 has stated about packing of goods in gunny bags for clearances and Shri Aslam Shah had also stated so but it can be seen that he stated that on certain occasion on request of customers, they used to pack the cloth bags in gunny bags for safe transportation. That nowhere there is admittal that in respect of all consignments by M/s Hira they had resorted to packing of 5 - 6 bags in gunny bags. Department has not been able to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Tri. - Del.)] (l) Collector Of Customs, Madras And Others V/s D. Bhoormull 1983 (13) E.L.T. 1546 (S.C.)] (m) M. Nagabhushana V/s State of Karnataka [2011 (271) E.L.T. 481 (S.C.)] (n) Union of India V/s East West Shipping Agency [2010 (253) E.L.T. 12 (Bom.)] (o) Sulochana Amma V/s Narayanan Nair [1995 (77) E.L.T. 785 S.C.)] (p) Commissioner of Central Excise, Delhi-I V/s Ishnu Co. Pvt. Ltd. [2016 (332) E.L.T. 793 (Del.)] (q) Chandan Tobacco Company V/s Commissioner of C. ex., Vapi [2014 (311) E.L.T. 593 (Tri. - Ahmd.)] (r) Nava Petrochemicals Ltd. V/s Commissioner of C. Ex., Ahmedabad [2010 (254) E.L.T. 165 (Tri. - Ahmd.)] (s) commissioner of c. Ex., chandigarh-I V/s Laxmi Engineering Works [2010 (254) E.L.T. 205 (P H)] (t) Kamboj Ispat P. Ltd. V. Commissioner [2016 (333) E.L.T. A116 (Tri. - Mumbai)] (u) MD. Noman Alam V/s Union of India [ 2016 (331) E.L.T. 163 (Pat.)] 4. Shri. Ashutosh Nath, Ld. Asstt. Commissioner(A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned orders in as much as demand of ₹ 31,50,075/-. However as regard the Revenue s appeal seeking demand of ₹ 1,09,40,463 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed upon the Papers seized from premises of M/s Super Trading and statement of its proprietor Shri Arshad who explained the entries of such papers and also stated that the quantity of Gutka, Sada pan masala and other items were more than the invoice quantity. Shri Aslam, partner of M/s Hira Enterprise also accepted the statement of Shri Arshad. We find that except the above statement and papers seized from the premises of M/s Super Trading no other evidence has been brought on record that the assessee firm has supplied the goods more than the invoiced quantity. We find that no evidence or papers has been seized from the assessee firm which can show that they have cleared goods more than the invoiced quantity. Though during investigation the name of other dealers selling the goods of the assessee firm also cropped up but it is not known as to whether they were also receiving goods more than the invoiced quantity. We also find that Shri Aslam Shah in his statement has stated that the goods were packed in gunny bags i.e 5 or 6 bags of Hira or BaOba Gutka or Pan masala in one gunny bags only if the buyers wanted them to do so. However it is not forthcoming from the investigation as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that the investigation has been silent on all the aspects of procurement of raw material, labour, power, manufacture of finished goods, its clearance from factory of assessee firm and receipt of any amount towards alleged clandestine clearance. Further no excess stock has been found from the assessee s factory and no incriminating records were seized. Summing up all the above facts we are of the view that the statement of Shri Mohd. Arshad of M/s Super Trading and its acceptance by Shri Aslam Shah, Partner of M/s Hira Enterprise and findings of paper containing some transactions are not conclusive evidence of clandestine removal by M/s Hira Enterprise. We are of the view that the evidences i.e papers/ records found from the third party i.e M/s Super Trading cannot be a basis for holding clandestine removal by M/s Hira Enterprise in absence of any corroboration from assessee s side and thus demand cannot be made against M/s Hira Enterprise. We also find that in case of goods found at the premises of M/s Super Traders alleged to have been cleared from the factory of M/s Hira Enterprises without payment of duty and wherein confiscation of goods and imposition of penalties upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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