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Shri Ram Shiromani Verma, Shri Suresh Kumar Verma, Shri Sanjeev Kumar Verma Versus Commissioner of Central Excise & Service Tax, Lucknow

2017 (10) TMI 497 - CESTAT ALLAHABAD

Clandestine manufacture and removal - Tobacco - 4,91,400 pouches of chewing tobacco on which no brand was mentioned and 8,59,950 pouches of Shiv Baba Brand scented Supari also called Pan Samagri were found in the manufacturing premises and some quantity of raw material and packing material was also available - cross-examination - Two different varying stands have been taken by Revenue with regard to processes applied for manufacturing of chewing tobacco - Contention of the Revenue as put forth i .....

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ama discovery of any machine, apparatus, appliances or vessels used for processing of raw un-manufactured tobacco or mixing it with any other material. - Contention of Revenue as put forth in show cause notice, that packing of Unmanufactured tobacco in pouches converts it into manufactured chewing tobacco is totally misconceived and highly presumptive. Central Excise Tariff and the exemption notifications issued in relation to Unmanufactured tobacco and Chewing tobacco do not recognize any s .....

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he provisions of 2010 Rules and N/N. 16/2010- C.E dated 27.02.2010 further make it amply clear that the Adjudicating Authority erred in taking the view that unmanufactured tobacco is transformed into manufactured chewing tobacco simply on account of packing in pouches of FFS Machines, irrespective of the nature of tobacco packed in pouches. - With regard to the allegation that the Appellant was engaged in clandestine manufacturing and clearance of Shiv Baba Brand Scented Jarda/Chewing Tobacc .....

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IA] has held that the samples should be first sent for chemical analysis and thereafter the question of classification of the product should be taken up on the basis of the chemical analysis report and other materials. Therefore, we find that it is binding on all to decide the classification of goods on the basis of the report of CRCL laboratory on the chemical composition of the samples which were drawn from the manufacturing premises. - CRCL has reported that sample was in the form of bro .....

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s to establish that during the entire period of show cause notice any of the 14 machines were engaged in the manufacture of Shiv Baba branded scented Zarda chewing tobacco of RSP 50 Paise. On the contrary when the officers visited the manufacturing premises on 14.10.2014 it was noticed that 6 machines put together in two premises were engaged in packing of unbranded unmanufactured chewing tobacco and there was no RSP mentioned nor brand name was mentioned on them and other 8 machines were engage .....

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of appellant. - Appeal Nos. E/70374, 70375 & 70376/2017-EX [ DB ] - Final Order Nos. 71190-71192/2017 - Dated:- 31-8-2017 - Mr. Anil Choudhary, Member ( Judicial ) And Mr. Anil G. Shakkarwar, Member ( Technical ) Shri H.O. Tiwari (Advocate) Shri Amit Awasthi (Advocate) for Appellant Shri Rajeev Ranjan (Joint Commissioner) AR for Respondent ORDER Per: Anil G. Shakkarwar Above stated three appeals are arising out of common impugned Order-in-Original No. LKO/EXCUS/000/COM/EX/042/2016 17 dated 01/0 .....

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ankar Traders at Malipur Road, Sijhouli Ambedkar-Nagar and at factory premise of Shri suresh Kumar Verma situated at Yahiya Kamalpur, Akbarpur, Ambedkar-Nagar and at the residential premises of the appellants. It was found that Shri Suresh Kumar Verma was engaged in the manufacture of Shiv Baba Brand scented Supari also called as Pan Samagri which was having retail sale price of ₹ 1 per pouch and said manufacture was being undertaken at 2 unregistered premises at Malipur Road and at Yahiya .....

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aw material and packing material was also available. The officers carried out investigations and recorded statements. They had also seized the entire quantity of raw materials available and all the 14 packing machines. On 14.10.2014 officers recorded statement of Shri Gyanendra Verma incharge of premises at Yahiya Kamalpur premise. Further on 14.10.2014 statement of Sanjeev Kumar Verma was recorded and on the same day statement of Shri Ram Shiromani Verma was also recorded. Shri Ram Shiromani Ve .....

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the chemical examination report stated that the sample was in the form of brownish bits of leaves and that it was mainly containing the tobacco and that it did not contain added lime and flavouring agent the show cause notice contended that on 14.10.2014 in one premise they found that raw tobacco was being processed with scent and it was being sent to another room for packing purpose and that stock of raw material found available also contained loose manufactured chewing tobacco about 16 Kg in t .....

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appeared to Revenue that appellant Shri Suresh Kumar Verma was manufacturing Shiv Baba Brand scented Zarda chewing tobacco of RSP of 50 Paise per pouch and the same was classifiable under Tariff Item No. 24039910 of first Schedule to Central Excise Tariff Act, 1985 and said product was manufactured chewing tobacco and the same was covered as notified goods under Clause (c) of the Rule 2 of Chewing Tobacco and Unmanufactured Tobacco Packing Machine (Capacity Determination and Collection of Duty) .....

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re deemed to have been in operation since 1st day of April, of respective financial years and therefore the duty has to be determined for the period from 1 April, 2013 to October, 2014 and that the rate of duty applicable for manufacture of chewing tobacco of MRP upto ₹ 1/- under Notification No. 14/2012 dated 17.10.2012 was ₹ 12 lakh per machine and under Notification No. 02/2014-CE dated 24.01.2014 it was ₹ 14.07 lakh per machine and under Notification No. 17/2015 CE dated 11 .....

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s and why Central Excise duty amounting to ₹ 35,55,54,387/- should not be demanded and recovered from Suresh Kumar Verma under the provisions of sub Section (4) of Section 11A of Central Excise Act, 1944 read with Rule 18 (2) of 2010 Rules along with interest thereon and why ₹ 70,04,000/- already deposited should not be appropriated. It also proposed to impose personal penalty under Rule 26 of Central Excise Rules, 2002 on the other two appellants Shri Ram Shiromani Verma and Shri Sa .....

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ppers and that by way of cross-examination it had come up that tobacco in question was unmanufactured which also found support from the ultimate report of CRCL and that the pouches in which tobacco was packed as found in the manufacturing premises at the time of conducting the raid the pouches were totally unbranded and retail price was not mentioned on the same. They also stated that Shri Gyanendra Verma and Panch witnesses had further stated that they were not aware of any words branded/unbran .....

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nowledge to distinguish between manufactured and unmanufactured tobacco and also stated during the cross-examination that the packing roll which was available on the packing machines was plain green colour roll which was not having any brand name written on the same and that Panch witnesses conformed during the cross-examination that there was no perfume mixing machine lying in the manufacturing premises at the time of raid conducted by officers of Central Excise. They further contended that it .....

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d evidences put together establishes that appellant Shri Suresh Kumar Verma was manufacturing only unbranded, unmanufactured tobacco which was being packed in the packing machines and in the pouches which did not have any brand name and MRP printed on the same and the machines were also used for packing of scented Supari which was also called as Pan Samagri. They further contended that since the goods covered by the notification were not manufactured by them and therefore they were not liable to .....

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cturing activity at the aforementioned two unregistered premises were not done out of ignorance but was meticulously planned and supervised by Shri Suresh Kumar Verma (Noticee No. 2) and younger brother of Shri Ram Shiromani Verma (Noticee No. 1) who was in the knowledge of such activity and also facilitating the same. The premises of M/s Shankar Traders at Malipur Road, Sijhauli, Akbarpur, Ambedkar Nagar (whose Proprietor is Shri Sanjeev Kumar Verma) where six electrically operated pouch packin .....

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orders to Shri Sanjeev Kumar Verma, Proprietor of M/s Shankar Traders, Akbarpur, Ambedkar Nagar since April, 2014 and payments were received through R.T.G.S. He had accepted on record that five cylinders were used in printing those laminated rolls in bill No. 2 dated 10/04/2014 and the said cylinders were supplied by Shri Sanjeev Kumar Verma and were returned back to him in October, 2014. Similarly, Shri Dinesh Nag, Director of M/s Dikun Pack Pvt. Ltd., 25-B-1, Dada Nagar, Kanpur in his statemen .....

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bmitted that his firm has supplied Printed Laminated Rolls and pouches for supari to M/s Shankar Traders, Akbarpur, Ambedkar Nagar for which order was given by Shri Ram Shiromani Verma and cylinders were supplied by the party themselves. Shri Dikun Nag was also cross examined by the noticee and its counsel wherein he informed that the packing materials were supplied as per their orders by both the parties to whom either the material was sent by same trucks or the parties themselves collected it. .....

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with active participation of the noticees who are directly benefitted from such activity by evading payment of Central Excise duty thereon. In present case the Retail Sale Price of the impugned pouches of unbranded chewing tobacco was investigated and ascertained by the Assistant Commissioner, Central Excise, Faizabad and it was found that one pouch of unbranded chewing tobacco was given free as combo with one pouch of Shiv Baba Supari of M.R.P. Re, 1/- to retail customers. 46. I also observe th .....

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lowing deposits have been made by Shri Ram Shiromani Verma towards the duty liability of his brother Shri Suresh Kumar Verma which has since been deposited in the Government exchequer: i. Cash amounting ₹ 20,04,000/- seized at the residential premises of Shri Ram Shiromani Verma situated at Shanti Bhawan, Mohalla Shanti Nagar, Shahjadpur, Akbarpur, Ambedkar Nagar on 14/10/2014 as detailed in Panchanama dated 14/10/2014. ii. Two cheques of ₹ 5,00,000/- each (i.e. total amounting to &# .....

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ther, alongwith manufacturing of other branded/unbranded tobacco products with the aid of 14 FFS machines in full knowledge of his elder brother Shri Ram Shiromani Verma (Noticee No. 1) proprietor of M/s Shiv Produtcts. It is also found that Shri Suresh Kumar Verma (Noticee No. 2) never declared to the department, any manufacturing activity at the two unregistered premises, both of which are his ancestral properties, at Yahiya, Kamalpur, Akbarpur, Ambedakar Nagar and at Malipur Road, Sijhauli, A .....

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No. 17/2014-CE dated 11/07/2014 as amended. The above acts of Shri Suresh Kumar Verma (Noticee No. 2) proves his mens rea, as he wilfully evaded the Central Excise duty which was due thereon by clandestine manufacturing and clearance of branded Shiv Baba Brand Zarda as well as packing unbranded tobacco through FFS machine on an unregistered premises and makes him liable to pay Central Excise duty under provisions of Section 11A (4) of the Act read with Rule 18(2) of the 2010 Rules, along with i .....

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acking laminated rolls and cylinders to the suppliers and are therefore liable to penalty under Rule 26(1) of the Central Excise Rules, 2002. After recording the above stated findings the Original Authority confiscated the goods valued at ₹ 69,27,845.50/- and gave an option to redeem the same on payment of redemption fine of ₹ 20 lakhs. Further the Original Authority confirmed the demand of Central Excise duty amounting to ₹ 35,55,54,387/- and directed Shri Suresh Kumar Verma t .....

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Excise Rules, 2002. Aggrieved by the said order the appellants are before this Tribunal. 5. The grounds of appeal include the following grounds:- (i) The report on the test memo issued by CRCL, New Delhi indicated that samples did not contain any lime or flavouring material and therefore the product was unmanufactured tobacco classifiable under Chapter 2401 and the same was not included by Notification issued under Section 3A of Central Excise Act, 1944 and that the said material fact has been .....

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emmed or trimmed or untrimmed, broken or cut but not tobacco ready for smoking. It was further contended that Board in Para-5 of the said Circular clarified that unmanufactured tobacco is merely broken by beating and then sieved and packed in the retail packets with or without brand name for consumption as chewing tobacco and would be classifiable under Heading 24.01. (iii). They further contended that Hon ble Supreme Court of India in the case of the Damodar J Malpani v/s Commissioner of Centra .....

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s. The contentions of learned counsels are as follows:- 6.1. The impugned show cause notice relied upon the Panchnama dated 14.10.2014 drawn at the premises of M/s. Shanker Traders, Malipur Road, Sijhouli, Ambedkar-nagar, (RUD-1) wherein it has been recorded that the officers also found that Chewing Tobacco Zarda was being manufactured in another room and that raw tobacco was purchased from the market and after mixing it with scent, etc. it was taken to other room for packing in pouches and that .....

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cco is packed in pouches then such tobacco is nothing but chewing tobacco and alleged in Para-40 of said show cause notice that tobacco which is packed in the pouches with the aid of pouch packing FFS machines is only used for chewing purposes and is manufactured chewing tobacco . 6.3. Two different varying stands have been taken by Revenue with regard to processes applied for manufacturing of chewing tobacco 6.4. There was absolutely no factual and evidentiary basis whatsoever to substantiate a .....

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re recorded in the Panchnama discovery of any machine, apparatus, appliances or vessels used for processing of raw un-manufactured tobacco or mixing it with any other material. 6.7. Even though the said Panchnama dated 14.10.2014 states that twenty five labourer were found working at the premises, the investigating officers have not recorded the statement of even a single labourer who may have stated that raw un-manufactured tobacco was being processed and mixed with lime, perfume or any other m .....

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nes . Thus facts recorded in the second Panchnama (RUD-5) do not support the observations and inferences drawn on the basis of facts recorded in the first Panchnama (RUD-1). 6.9. None of the above said two Panchnamas record any fact showing existence in stock or recovery of any perfumery material or aromatic substance or any other material such as lime, molasses or kathha, that could be said to have been used or being used to convert raw unmanufactured tobacco into a manufactured tobacco product .....

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definitions of Chewing tobacco to contend that tobacco packed in pouches is used only for Chewing purposes and is therefore manufactured Tobacco and concludes in para 42 of the SCN that the goods prepared by Shri Suresh Kumar Verma is scented jarda Chewing Tobacco which is being packed through electronically operated pouch packing machines (FFS Machines) in unbranded as well as branded ( Shiv Baba Zarda Chewing Tobacco) pouches. 6.11. Contention of Revenue as put forth in show cause notice, tha .....

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g a brand name as well as for chewing tobacco, with and without lime tube/lime pouches. Thus, mere fact that raw un-manufactured tobacco is packed in pouches on FFS packing machines does not convert such unmanufactured tobacco into a manufactured product such as chewing tobacco 6.12. The provisions of 2010 Rules and Notification No. 16/2010- C.E dated 27.02.2010 further make it amply clear that the Adjudicating Authority erred in taking the view that unmanufactured tobacco is transformed into ma .....

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37 and 42 of the SCN dated 01/10/2015 and letters dated 03/09/2015 and 08/09/2015 of Assistant Commissioner, Central Excise, Faizabad. 6.14. It is an admitted fact that samples were drawn at both the said unregistered premises from out of the seized quantity (i) of stock of raw (kacchi) tobacco packed in jute bags (ii) of Chewing Tobacco Jarda (loose) found in drums (iii) of Chewing Tobacco Jarda recovered from hoppers of the pouch packing machines found installed at the respective premises (iv .....

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amples were drawn from the unmanufactured raw (kacchi) tobacco packed in jute bags or from tobacco recovered from the drums or from the hoppers or from the unbranded pouches, have given the same results confirming the goods subjected to test being nothing more than brownish bits of leaves. It is mainly containing tobacco. It does not contain added lime and flavoring agent . The Test Reports provided by CRCL, New Delhi prove that tobacco packed in unbranded pouches did not contain any additive ma .....

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acco , have completely failed to discuss the reasons for discarding the material evidence available by the way of said Test Reports and relying solely upon the contents of the Panchnamas drawn at the said two factory premises and statements of few persons which did not even stand to the test of veracity during the course of cross examination allowed by the Learned Respondent himself. 6.16. The Original Authority did not discuss and record any findings on the contention put forth by the Appellant .....

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ions provide any explanation as to on what physical or chemical examination basis the investigating officers recorded the tobacco packed in jute bags as unmanufactured (Kachhi) tobacco whereas the tobacco recovered from drums or hoppers of the packing machines was recorded as Chewing Tobacco. Under aforesaid circumstances the Appellants have emphasized before the Adjudicating Authority that the contents of the said two Panchnamas are not relevant for determining the crucial issues arising for de .....

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tice. I am of the view that the panchas sign the Panchnama in token of having seen the proceedings conducted in proper manner. It is a settled procedure that the entire proceedings are always read out to the Pancha s if they are not able to read and write and they sign the same for having witnessed the entire activity done in a cordial manner which was done in this case. From the cross examination nothing came out regarding the Panchnama which was challenged by the Noticee as well as nothing cam .....

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contents to the said Panchnamas by the Appellants was not merely on account of noticeable deficiencies in the manner of conducting search and stock verification proceedings, but also primarily and essentially on account of absence of factual, authoritative and scientific basis on which the investigating officers described the tobacco found in jute bags as unmanufactured (kachhi) tobacco and the tobacco recovered from the drums and hoppers of packing machines as Chewing Tobacco and further record .....

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e Panchnama which was challenged by the Noticee as well as nothing came out regarding their claim that the goods were unmanufactured unbranded tobacco as claimed by the Noticee . On the contrary, it can be easily seen from the record of cross examination proceedings , available at pages from 97 to page 110 of the paperbook, that all the Panch witnesses as well as Mr. Gyanendra Verma have categorically stated during the course of cross examination that tobacco as received in jute bags is first ta .....

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ed tobacco or between branded and unbranded chewing tobacco though they could see that tobacco which was packed in jute bags was in raw form containing dust, stems, veins and some portion of leaves which after being dusted off were put in the drums and then in the hoppers for packing in plain green colour rolls. The Panchas also testified during cross examination that they never got an opportunity to listen to the contents of the Panchnama in their own native language nor the contents of the Pan .....

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from the Test Reports given by the Chemical Examiner, CRCL, New Delhi which confirm that all the samples as: brownish bits of leaves. It is mainly containing tobacco. It does not contain added lime and flavoring agent 6.19. The Original Authority erred is not appreciating that in view of the depositions made during the course of cross examination of pancha s and other witnesses as well as in view of the Chemical Test Reports provided by CRCL, New Delhi, no credence could be given to the content .....

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s judgments including those of the Apex Court that it is only chemical analysis of the goods (tobacco) packed on FSS packing machines which can provide a scientific, factual and legal tenable basis to take a conclusive view as to whether the tobacco packed in pouches is unmanufactured tobacco or manufactured chewing tobacco. The Appellant also placed reliance upon judgments wherein it has been held that unmanufactured tobacco merely broken by beating, crushing and sieving and packed in retail pa .....

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v) CCE, Kanpur Vs. Ravindra & Co. reported in 2000(120) ELT 699 (Trib.) (v) TPNS Chettiar Parvathi Vilas Tobacco and Cigars Co. vs. CCE reported in 1989 (41) ELT 79 (Trib.) (vi) Ishwar Grinding Mills vs. CCE, Calcutta-I reported in 2000(117) ELT 743 (Trib.) (vii) Shrikant Prasad vs. CCE, Calcutta-I reported in 2000(117) ELT 345 (Trib.) 6.21. To conclude the Appellant submitted that apart from the said two Panchnamas dated 14.10.2014 and the oral statements, which too stand retracted during t .....

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bearing any brand name is fully exempt from duty in terms of serial no. 41 of exemption notification no. 12/2012-CE dated 17/3/2012, there does not arise any question of any duty liability on account of having produced and removed unmanufactured tobacco packed on pouch packing machines in pouches bearing no brand name and no retail sale price. 6.22. With regard to the allegation that the Appellant was engaged in clandestine manufacturing and clearance of Shiv Baba Brand Scented Jarda/Chewing Tob .....

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of small quantity (16.2 kg.) of printed packing rolls which depicted in print the brand name Shiv Baba Zarda and the name and address of the manufacturer as M/s Shiv Products , Shahjadpur, Akbarpur, Ambedkar Nagar, UP, C. Ex. No. ABWV8565CE M001, M/50 paise. The aforesaid recovery of printed laminated rolls of Shiv Baba Zarda which was reflected in the Panchnama dated 14/10/2014 (RUD 5) is attempted to be supported by way of corroboration from the statements, all dated 14/10/2014, of Shri Gyane .....

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s statement dated 14.10.2014 nowhere admitted that pouch packing machines in the said premises were being used for packing and clearance of Shiv Baba Brand Scented Jarda Tobacco. Further in his letter dated 06/04/2015 he categorically stated that only unbranded tobacco has been packed on the machines installed in the premises and branded tobacco has never been packed. (b) With regard to the recovery of printed packing rolls from the factory premises at Yahiya Kamalpur, Shri Sanjeev Kumar Verma i .....

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Suresh Kumar Verma. (c) Shri Suresh Kumar Verma in his statement dated 24/07/2015 unequivocally affirmed that pouch packing machines installed at both the premises belonging to him have never been used for packing of Shiv Baba Brand Zarda. (d) Shri Ram Shiromani Verma in his statement dated 30/07/2015 stated that the said rolls have never been sent by his firm to the said two premises belonging to Shri Suresh Kumar Verma, though it is possible that on account of the mistake of their packaging m .....

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hiromani verma is fully supported and corroborated by the statements and letters cited at sub paras (a) to (c) above. All these statements taken together completely disprove the factually baseless and presumptive inference that Shiv Baba Brand Scented Zarda/ tobacco was being manufactured and cleared from the said two premises belonging to Shri Suresh Kumar Verma. (f) Apart from recovery of small quantity of printed laminated packing rolls bearing the brand name of Shiv Baba Zarda, which was mis .....

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. (g) All the test reports of samples of the so called Chewing Tobacco drawn at the said two premises have reported the results by recording the facts that the samples subjected to test are brownish bits of leaves. It is mainly containing tobacco. It does not contain added lime and flavoring agent - which proves that the tested goods are nothing but RAW UNMANUFACTURED TOBACCOO. In view of such categorical Test Reports there exists no factual and logical basis whatsoever to even allege that the A .....

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ontentions and on perusal of record at the outset we do not agree with the contention of learned DR for the reason that it has been very clearly stated in the whole proceedings that Panch witnesses of Panchnamas dated 14.10.2014 and others concerned have stated in their statements and during cross examination that tobacco was being packed on machines in green colour paper on which no brand was mentioned and no MRP was mentioned and therefore we do not find contention of learned DR that goods wer .....

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tion of the samples which were drawn from the manufacturing premises. We find from Para-42 of the show cause notice dated 01.10.2015 that CRCL has reported that sample was in the form of brownish bits of leaves and it was containing tobacco and that it did not contain any added lime or flavouring agent. We find that the Original Authority has held that the goods manufactured by the appellant were Shiv Baba Brand scented Zarda chewing tobacco. We do not find any evidence to establish that during .....

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