TMI Blog2018 (1) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... long with interest is justified - appeal dismissed - decided against appellant. - Ex. Appeal No. 76115/16 - Order No. F/O/78705/2017 - Dated:- 29-12-2017 - Shri P. K. Choudhary, Hon ble Judicial Member Shri Gopal Chandra Purkait, Tax Consultant for the Appellant Shri A. Roy, Supdt. (A.R.) for the Revenue ORDER Per Shri P. K. Choudhary This appeal has been filed by the appellant against the Order-in-Appeal No.10/Kol.V/16 dated 16.03.2016 passed by Commr. of Central Excise (Appeals), Kolkata. 2. Briefly stated the facts of the case are that the appellants are engaged in the manufacture of varieties of Cakes classifiable under Chapter 19 of the Central Excise Tariff Act, 1985. Show Cause Notices were issued proposin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d below : 6.3 I find that goods are returned to factory under goods return Memo of their Company from different retailers/distributors with complain as printed mainly of (i) Fungus, (ii) Damaged (iii) Expiry and of (iv) Sample. Now, in order to receive any duty paid goods there is specific provision under Rule 16 of the Central Excise Rules, 2002 for return/re-entry of the duty paid goods to the factory of manufacturer. As a Central Excise registered manufacturers they should follow the procedure as stipulated in the Central Excise Rules and not according to their own sweet will. The assessee is working under self assessment and self removal procedure and it is expected that they should adhere to the central excise act and rules and pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not permitted in law. The appellant also did not maintain or produced any Test Report towards goods being unfit for consumption before such destruction at this forum. The whole exercise is therefore done in defiance of law with an intention to do certain malafide practice by the manufacturer and might have done to clear replaceable items and to maintain records of the same in their factory of the goods received for other purpose to mean replacement quantity. This maintenance of records indicate that there is every possibility of the returned goods being replaced and clearance made against such challans and on same Vehicle in which goods are returned to their factory. The practice adopted by the appellant clearly establishes malafide int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nely or there is sufficient evidence that those goods are duty paid return goods which are destroyed after passing through necessary formalities for such destruction and records maintained of such destruction in the presence of proper Central Excise authority. In CCE Vs. Bajaj Auto : 2010 (260) ELT 17 (SC), it was held that initial burden to show ingredients of Section 11A of the Central Excise Act, 1944 existed is on department, but burden shifts on assurance once department is able to produce material to show the assessee guilty of any of the situations visualized in Section 11A of the Central Excise Act, 1944. 6. In view of the above observations, I do not find any reason to interfere with the Order of the Commissioner (Appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X
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