TMI Blog2017 (10) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... e. - E/844/2006 - A/12659/2017 - Dated:- 15-9-2017 - Dr. D. M. Misra, Member (Judicial) And Mr. Ashok K Arya, Member (Technical) For the Appellant : Shri Paritosh Gupta, Shri Amal Paresh Dave, Advocates For the Respondent : Shri J. Nagori, Authorised Representative ORDER Per : Ashok K Arya M/s Madhusudan Industries Ltd is in appeal against OIO No. 29/Commr/2005 dated 19.12.2005 whereunder, interalia, the demand of duty of Central Excise of ₹ 54,38,208/- alongwith interest and equivalent penalty against the appellant has been confirmed. 2. The brief facts are that:- (i) During the period of March and April 2003 branded Vanaspati was attracting Central Excise duty at the rate of 8% as the benefit of exemption Notification No. 6/2003 dated 1.3.2003 was available only to unbranded Vanaspati and not to 'branded Vanaspati'. The appellant vide their letter dated 03.03.2003 gave their stock position of branded Vanaspati as on 28.10.2003 to the Central Excise Department as 2835.718 M. Tonnes. However, the appellant in their ER-1 returns for the month of March 2003 and April 2003 filed with the department bifurcated the said stock of 2835.718 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of unbranded Vanaspati and RT-12 Returns. (v) The appellant's letter dated 25.09.2003 explained the actual scope of declaration dated 03.03.2003 and the reason why the varieties like Madhuram etc, shown in the letter dated 03.03.2003 stood explained during inquiry itself. (vi) Page Nos. 168 to 180 of Civil Supplies Register contained the total production of Vanaspati, and production of March, 2003 which had been bifurcated into branded and unbranded category in view of the Central Excise Notification No. 6/2003 on Page Nos. 182-187 of the Civil Supplies Register. (vii) The appellant would have removed or torn off Page No. 168 to 180 if any malafide intention was harboured but these pages were retained in the civil Supplies Register and re-written with bifurcation of branded-unbranded varieties and this was also explained by Shri Nilesh Gandhi when his statements were recorded. (viii) There was no re-writing of Civil Supplies Register of April 2003 in any case. (ix) The buyers of Vadodara, Bhuj, Bharuch and Ahmedabad clarified during adjudication through their affidavits that the goods purchased and received by them were unbranded Vanaspati. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods were in their stock on 28.02.2003 at 12 PM having respective varieties/brands descriptions and the quantity. In this regard, the scan copy of the assessee's letter dated 03.03.2003 written to the Superintendent of C. Excise, Range-II Gandhinagar Division is given below:- 6.2 The appellant pleads that at the time of sale of the subject goods they removed such identification/labels etc, indicating the brand/varieties like Madhuram , Mahek , Maska etc, which is evident from some of the statements recorded by the department. However, It is necessary to state that the duty of Central Excise is on manufacturing and by their own declaration dated 03.03.2003, the assessee-appellant admits that they manufactured these branded/varieties of Vanaspati. The collection of the Central Excise duty is postponed only as a matter of convenience to the point/time of removal of the excisable goods. Further, the assessee is unable to explain that once they had put the varities/brands identification labels etc of respective varieties/brands, how did they remove such labels/varieties. Further, during the hearing it has also been admitted by the appellant that such brands/varieti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avits have been filed, it appears that the contents of original statements do not lose their evidentiary value. The Hon ble Supreme Court in its decision in the case of Vinod Solanki Vs. UOI - 2009 (233) ELT 157 (S.C.) has held that the Court is obligated to take into consideration both the confession and retraction made by the accused. In the light of other evidences available on record, we find that the original statements of the concerned persons, who filed affidavits contesting the contents of their earlier statements cannot be discarded. The Hon ble Supreme Court in the said decision interalia has observed as under:- 35 . In the instant case, the Investigating Officers did not examine themselves. The authorities under the Act as also the Tribunal did not arrive at a finding upon application of their mind to the retraction and rejected the same upon assigning cogent and valid reasons therefor. Whereas mere retraction of a confession may not be sufficient to make the confessional statement irrelevant for the purpose of a proceeding in a criminal case or a quasi criminal case but there cannot be any doubt whatsoever that the court is obligated to take into consideratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by them are of the brand name Madhuram Chitta Brand , though the same have been mentioned as Unbranded Goods in the two invoices. Shri Nandlal Meghraj Shah interalia says as follows:- We have purchased 50 tins of 15 Ltrs of Vanaspati i.e. Ghee vide invoice No.362 dtd. 24.04.2003 No.539 dtd. 29.04.2003 from M/s Madhusudan Industries Ltd, Rakhial Sim Teh. Dehgam, Distt. Gandhinagar. The 50 tins of Vanaspati tins have been received by us under a brandname of Madhuram - Chitta Brand , though the same has been mentioned as Unbranded Goods in the above mentioned two invoices. Xerox copies of respective invoices, payment made thereto are produced herewith for further enquiry. We are still today also receiving tins of MADHURAM Chitta Brand from M/s Madhusudan Industries Ltd., Rakhial, A bad. We have never purchased unbranded Vanaspati tins from M/s Madhusudan Industries Ltd. On being asked further, it is to state that we have received a letter dated 05.05.2003 from M/s madhusudan Industries Ltd, Rakhial, A bad asking us to certify that all goods in above referred two invoices are received by us bear no logo or brand name. To this, I have to reply that we have no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were initially made from pages 168 to 180 of the register for the dates 01.03.2003 upto 31.03.2003. But, these entries have been simply scored out and fresh entries have been made in the register from pages 182 to 187, again showing the opening stock production etc. for the same period from 01.03.2003 to 31.03.2003. Shri Nilesh Gandhi has explained in his statement that this cancellation was necessitated because of utmost confusion and chaos which resulted on introduction of concept of branded and unbranded Vanaspati in the Excise Tariff during the Union Budget presented on 28.02.2003. I confirm that there was absolutely no clarity on what actually constitutes branded and unbranded. I tried my level best to ascertain from the department by personally visiting the Superintendent of central Excise, Asst. Commr. as well as Jt. Commr. Of Central Excise, Ahmedabad. Regrettably, despite persistent efforts no authentic information was available during the month of march on what actually constitute branded/unbranded. Hence, the dealing clerk responsible for maintaining the Civil Supply register on a daily basis could in no way have maintained the register differentiating between different ..... X X X X Extracts X X X X X X X X Extracts X X X X
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