TMI Blog2017 (5) TMI 231X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals are arising out of common Order-in-Original No.16/Commissioner/LKO/Remand/CX/2012-13 dated 01/11/2012 passed by Commissioner of Central Excise Service Tax, Lucknow. Therefore, they are taken together for decision. 2. The brief facts of the case are that the M/s Durga Trading Company, Lucknow was engaged in the manufacture of Pan Masala Gutkha under the brand name 'Pukar'. M/s Kashi Laminators (P) Ltd., Sitapur Road, Lucknow was engaged in the manufacture of Plastic Products and their main customer was M/s Durga Trading Company, Lucknow. Manufacturing premises of M/s Durga Trading Company, Lucknow along with factory of M/s Kashi Laminators (P) Ltd., Sitapur Road, Lucknow and some other premises, including the residential premises of 11 persons were searched on 18th March, 2004 by the Officers of Central Excise Intelligence. At the factory premises of M/s Kashi Laminators (P) Ltd., Sitapur Road, Lucknow, the stock of laminated/pouch rolls bearing brand name Pukar was found to be weighing excess by quantity of 3084.34 Kg. against the recorded stock of laminate valued at ₹ 5,08,916/- Further the stock of raw material was found in excess of recorded balance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdered the confiscation of finished goods and raw materials and also ordered confiscation of ₹ 2 lacs cash seized. It further imposed a penalty of ₹ 10 lacs on Shri Bhupesh Bansal and imposed penalty of ₹ 1 lac on Shri Lal Chand Agarwal under Rule 26 of Central Excise Rules, 2002. Aggrieved by the said OIO dated 27/05/2005 M/s Kashi Laminators Pvt. Ltd., M/s Shri Bupesh Bansal M/s Lal Chand Agarwal filed appeals before this Tribunal. This Tribunal passed Final Order No. 732-737/2011-Ex dated 12/08/2011, wherein this Tribunal remanded the matter back to the Original Authority by recording observations. This Tribunal in the said order has observed as follows:- (A). The allegations of supply of 18602.35 kg of Laminated Plastic Rolls for making Pukar brand Gutkha pouches was found from M/s Kashi Laminators Pvt. Ltd. from the period from 01/03/2004 to 13/03/2004 is based on some slips recovered from the residential premises of M/s Lal Chand Agarwal, father of Shri Bhupesh Bansal, Mangaging Director of M/s Kashi Laminators Pvt. Ltd. These slips are containing date-wise details of dispatch of pouch rolls of M/s Durga Trading Company and each of these slips bears th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... analyzing the same. This Tribunal, therefore, sets aside the said Order-in-Original No.19/Commissioner/LKO/2005 dated 27/05/2005 and remands the matter back for fresh consideration. 3. As a consequence of the said remand impugned order 16/Commissioner/LKO/Remand/CX/2012-13 dated 01/11/2012, was passed. 4. During the proceedings before the Original Authority the Cross Examination of Shri Bhupesh Bansal, Proprietor of M/s Kashi Laminators (P) Ltd., Sitapur Road, Lucknow, was conducted on 15/10/2012. Details of Cross Examination as reflected in impugned order are as follows:- (i) He was shown the last para of his statement dated 18/03/2004 where he had stated that some of the laminators were accounted for in the books and some not and was asked to submit in detail. He submitted that one person who introduced himself as Shri Sanjay Kumar used to visit their factory alongwith printing cylinders and the laminators film etc. by using the said Cylinder Laminated Films were manufactured and handed over to Shri Sanjay Kumar. The said film bears design and name of 'Pukar'. (ii) On being asked to explain the identity and address of the said Shri Sanjay Kumar, Shri Bhupe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation stated that Shri Sanjay Kumar, Lucknow was in fact a person, who came from Nepal along with his printing cylinders for cutting his laminated film and he also got Pukar Band printed on laminated roll from manufacturer as Durga Trading Company at Nepal. Shri Sanjay Kumar make payment in cash and had taken delivery of all the wastage along with the laminated film. (ii) Shri Bhupesh Bansal categorically stated that companies by the name of M/s Durga Trading Company, Lucknow and M/s Durga Trading Company, Nepal were different and had no nexus or link with each other. Statement of Shri Bhupesh Bansal lends support to the accepted point of the Tribunal that fake Pukar Gutkha was also manufactured at Nepal, which had no concern with M/s Durga Trading Company, Lucknow, the Noticee. (iii) Further countering the Chart-II prepared by DGCEI showing comparison of buyers copy of cash/credit memo of M/s Udai Traders, the Noticee submits that at the outset the said documents pertain to a trading firm M/s Udai Traders and dealing of which is principal to principal basis and even for the sake of arguments if the comparison Is taken to be correct then perusal of the documents shows th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be imposed only when a person deals with the goods liable for confiscation. In the present case, the goods were not liable for confiscation and therefore penalty imposed on him is not as per law. 10. Revenue has filed appeal against Shri Bhupesh Bansal which is bearing No.E/55709/2013. In the grounds of appeal by Revenue no specific ground was found for filing appeal against Shri Bhupesh Bansal as mentioned in the appeal memorandum. 11. Revenue has filed appeal against Shri Lal Chand Agarwal which is bearing No.E/55710/2013. Revenue has not specifically mentioned any ground as to why the penalty should have been imposed on Shri Lal Chand Agarwal. 12. Heard the learned Counsel, Shri Ashish Shukla, for M/s Kashi Laminators Pvt. Ltd., Shri Bhupesh Bansal Shri Lal Chand Agarwal. He has submitted that the order for confirmation of demand is based on the loose slips which are not authenticated and the evidence relied upon by the Original Authority is not sustainable in view of the observations of this Tribunal in the order through which the matter was remanded to the Original Authority. He further contended that the finished goods were within the premises o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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