TMI Blog2018 (5) TMI 1119X X X X Extracts X X X X X X X X Extracts X X X X ..... ut his statement was retracted subsequently. At the end of the buyers, both Shri Dinesh Mittal and Shri Dinesh Gupta in their statement have admitted that the seized goods were purchased from M/s PZF but without payment of duty. The statements of the buyers form a critical evidence in arriving at a decision in the present case - matter remanded to adjudicating authority to re-adjudicate the matter after following the procedure laid-down in Section 9D - appeal allowed by way of remand. - E/ROA/50116-50117/2018 in Appeal No.E/205-206/2012 - Final Order No. 51915-51916/2018 - Dated:- 18-5-2018 - HON BLE JUSTICE (DR) SATISH CHANDRA, PRESIDENT And HON BLE MR V.PADMANABHAN, MEMBER (TECHNICAL) For the Appellant : Shri A.K.Trivedi, Advocate For the Respondent : S/Shri R.K. Mishra, S.K. Bansal, DRs ORDER Per V. Padmanabhan, The present appeals are against the Order-in-Original No.6/2011 dated 31.10.2011. M/s Prabhat Zarda Factory (PZF) are engaged in the manufacture of branded chewing tobacco under the brand name of Ratna . The Department in pursuance of the intelligence that M/s PZF clandestinely cleared the final products without payment of duty, investigated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties. On completion of the adjudication proceedings, the impugned order was passed in which the adjudicating authority confiscated the finished goods seized from the various premises. Option was given to redeem the same on payment of redemption fine of ₹ 30 lakhs. Central Excise duty amounting to ₹ 52,99,602/- was demanded on the goods clandestinely cleared. Penalties were also levied on various per sons connected with M/s PZF as also on the buyer, the packing material seized was also ordered for confiscation. 5. Aggrieved by the impugned order, the present appeals have been filed. 6. All the appeals are being disposed-of through its common order. 7. With the above background, we heard Shri A.K. Trivedi, ld Advocate representing all the appellants. Revenue was represented by S/Shri RK Mishra and S.K. Bansal, Departmental Representatives. 8. The ld Advocates for the appellants argued the case on behalf of all the appellants. The arguments are summarized below: (i) No serious irregularities were unearthed by Revenue during the search at factory as well as residential premises of the Managing Partner. Even in the CPUs recovered, nothing incriminating was fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well as demand of duty and penalties may be sustained. 10. We have heard both sides and perused the appeal record. 11. The factory of M/s PZF is engaged in the manufacture of Ratna brand chewing tobacco. Finished goods with the same brand were found and seized from two godowns belonging to Shri Dinesh Gupta (Mittal). Packing materials bearing the brand name have also been seized from the premises of certain other buyers. The crux of the dispute in the present case is whether the seized goods have been manufactured and clandestinely cleared from the factory of M/s PZF. The connected question is whether the appellant is liable to payment of duty in respect of such seized goods. The penalties against various persons will be a corollary to the above questions. 12. Admittedly, no documents have been produced evidencing the licit nature of the seized goods. Consequently, the goods are liable for confiscation and the order of confiscation by the lower authority cannot be faulted. But the option of redeeming the same on payment of redemption fine, as ordered by the lower authority, will be available only to the person who is the owner of such goods. 13. From the record of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 9D(1) mandates that the evidence of the witness has to be recorded before the adjudicating authority, as, in such an atmosphere, there would be no occasion for any trepidation on the part of the witness concerned. 19. Clearly, therefore, the stage of relevance, in adjudication proceedings, of the statement, recorded before a Gazetted Central Excise Officer during inquiry or investigation, would arise only after the statement is admitted to evidence in accordance with the procedure prescribed in clause (b) of Section 9D(1). The rigour of this procedure is exempted only in a case in which one or more of the handicaps referred to clause (a) of Section 9D(1) of the Act would apply. In view of this express stipulation in the Act, it is not open to any adjudicating authority to straightway rely on the statement recorded during investigation/inquiry before the Gazetted Central Excise Officer, unless and until he can rely on the said statement as relevant for proving the truth of the contents thereof, he has to first admit the statement in evidence in accordance with clause (b) of Section 9D(1). For this, he has to summon the person who had made the statement, examine him as wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
