TMI Blog2017 (3) TMI 1090X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Central Excise officers and further the said witnesses had not been present during the recording of the statement of Shri Tara Chand and they did not send the annexures to the statement of Shri Tara Chand - demand set aside - appeal allowed - decided in favor of appellant-assessee. - Excise Appeal Nos. 1399, 1400, 1401 of 2010 - FINAL ORDER No. 50867-50869 /2017 - Dated:- 15-2-2017 - Mr. (Dr.) Satish Chandra, President and Mr. Ashok K Arya, Member (Technical) Shri A K Madhav Rao, Ms P Awasthi, Advocates for the Appellants Shri R K Manjhi, DR for the Respondent ORDER M/s. Tarachand Nareshchand is in appeal (Appeal No. 1399/2010) against the order in original No. 06-07/2010 (CE) dated 25.2.2010 wherein inter alia the Central Excise duty amounting to ₹ 1,03,90,824/- has been confirmed along with interest under the Proviso to section 11A(1) of Central Excise Act, 1944. Further Central Excise duty of ₹ 11,747/- , of ₹ 1,33,624/- of ₹ 1468/- and of ₹ 88,511/- also has been confirmed and equivalent penalties to these duty amounts have also been imposed. 1.1 There are presently two other appeals filed by M/s. Tarachand Nareshcha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he panch witnesses stated that there was no verification of the speed of the machines and no verification of the physical stock of the goods. (v) From the above, it is evident that the allegations of clandestine manufacture and removal are all a cooked up affair, and there is no clandestine manufacture and removal of the gutkha as held by the Commissioner. There is no other evidence led in by the Department on the record to show the clandestine manufacture and clearance of the goods. Thus, the impugned order is liable to be set aside in toto. 4.1. The appellants further submit as under: i) Regarding the production on 19.3.08 in the factory from 5.50 AM instead of 7 AM, as per the earlier declaration, the appellant s case is that the intimation had been sent on 18.3.2008 under postal certificate that due to the festival of Holi the production would commence earlier, which has been turned down by the Commissioner in the impugned order. ii) It is pertinent that the entire stocktaking was done within 10 minutes, starting from 6 AM to 6.10 AM on 19.3.2008. For arriving at the shortage within 10 minutes, the departmental officers in regard to supari had weighed 80 bags of 65 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l officers. That the statement of Mr. Tarachand had not been recorded in their presence, and that they had not signed the statement of Mr. Tarachand. All proof was provided to the Commissioner by way of the cell phone logs of both these witnesses, and the calls exchanged by them with Mr. Paras Jain aforesaid that they were called only around 3 PM on 19.3.2008 and not at 5.50 AM as set out in the panchnama by Mr. Manwani. Inspite of specific requests the Commissioner refused to grant cross examination of the visiting officers to the factory on 19.3.2008 to establish the correct and truthful version. vii) The two panch witnesses had also filed affidavits as to the occurrence of the events on 19.3.2008, and were categorical that they had not witnessed either the testing of the speed of the machines, nor were they present when the statement was recorded of Mr. Tarachand on 19/3/2008, since they had only come to the factory in the evening of 19/3/2008 and not early morning of 19/3/2008 as recorded in the panchnama. viii) By virtue of the instructions given by the CBEC, the unit of the appellants was completely under survey and any number of visits were conducted by the Department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of ₹ 133624 on the grounds that on 1.1.2008, while the appellants claimed that old packing material was available of 157/250 Kgs. Department contention is that such packing material was unusable from 1/1/2008. Appellants had changed the size of the pouches and started making smaller pouches from 1/1/2008. Hence on 1/1/2008 there was some leftover old packing material which would make bigger size pouches which the department has totally ignored. 4.2 Further, the learned advocate for the appellants relied on the following case laws: (i) Chandan Tobacco Company vs. CCE Vapi [2011 (270) ELT 87 ] (ii) Davinder Sandhu Impex Ltd. vs. CCE Ludhiana [2016 (337) ELT 99] (iii) Century Metal Recycling Pvt Ltd. vs. CCE Delhi [2016 (333) ELT 483 ] (iv) Ramesh Steel Re-rolling mills vs. CCE Hyderabad [2007 (219) ELT 285] (v) E.biz.com Pvt Ltd. vs. UOI [2016 (44) STR 526 (Del)] 5. The learned AR for the Revenue reiterates the findings given in the impugned order. Based on the written submissions, the learned AR submits as under:- (i) Physical verification of the speed of the machines was done in the presence of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Del) was placed. 6. After careful consideration of the facts on record, the submissions of both the sides and the case laws cited, it appears that the Revenue s case is entirely based on the statements of Shri Tarachand recorded, and the panchnama drawn on 19.3.2008, i.e. the date of visit of Central Excise officers. 6.1. The appellant assessee contends that during the earlier visit of Central Excise officers on 13.11.07, the department found the speed of machine as per the declaration which was 60 pouch per minute. The appellant assessee argues on the procedure to arrive at the speed of the machines. It is also argued that while taking the period of the demand from 14.11.07 to 19.3.08, the day of further visit by the Central Excise officers, it cannot be justified and is based just on presumption that the appellant assessee has been producing their goods at the speed of 80 pouches per minute. The main partner Shri Tarachand was put to arrest and was granted bail and it has been argued that at the first opportunity available Shri Tarachand retracted his inculpatory statement which is the main basis for the department to sustain the main demand of ₹ 1,04,02,571/- (Rupe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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