TMI Blog2018 (12) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be manufactured with the aid of packing machines if they are cleared from the factory where the pouch packing machine are found installed - the said provisions are not invokable in the present case, because revenue could not establish beyond doubt that the premises which was under the control of the manufacturer-appellant through rent agreement were the premises in which two pouch packing machines were found. Demand not sustainable - appeal allowed - decided in favor of appellant. - APPEAL Nos. E/57307 & 57308/2013-EX[DB] - FINAL ORDER NO-72526-72527/2018 - Dated:- 30-10-2018 - Smt. Archana Wadhwa, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Shri Rupesh Kumar Shri Jitin Singhal, Advocates for Appellant Shri Mohammad Altaf, Assistant Commissioner (AR), for Respondent ORDER Per: Anil G. Shakkarwar The above stated two appeals are taken up together for decision since they are directed against common impugned Order-in-Original No. 02-CE/COMMR/2013 dated 30/01/2013 passed by Commissioner of Central Excise Service Tax, Kanpur. 2. The brief facts of the case are that M/s Radhey Shyam and Sons (hereinafter referred to as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngineering Works. f) Statement dated 03.11.2009 of Shri Arpit Jain, Director of M/s Shree Bhawani Prints Laminates Pvt. Ltd. g) Two statements dated 09.03.2010 and 04.06.2010 of Shri Vikas Agarwal, Partner of M/s Shubh Multipack. h) Statement dated 13.11.2009 of Shri Dilip Kumar Malu, Manager of M/s Aman Marketing (supplier of tobacco). In his statement dated 29.10.2009 Shri Rajeev Gupta admitted that they were manufacturing Gutkha with VIKAS brand and that they were having two paddle sealing machines in their premises and that gutkha mixed was manually filled in the pouches and sealed with the aid of said paddle sealing machines. During the further investigations revenue came to know that in some part of the same premises two other business entities were working by name M/s Anandeshwer Enterprises and M/s Gaurav Enterprises. Shri Har Narayan Gupta was partner of M/s Anandeshwer Enterprises and Shri Sharad Gupta was proprietor of M/s Gaurav Enterprises. Both Shri Har Narayan Gupta and Shri Sharad Gupta through their statements stated that they were tenants of the same premises at 130/1309, Bagahi, Kanpur. Inquiry was also conducted at the end of manufacturers of FFS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the same premises having address at 130/1309 Bagahi, Kanpur namely M/s Gaurav Enterprises unit no.2, for manufacture of pan samagri and the other was M/s Shree Anandeshwar Enterprises, for manufacture of preparation containing tobacco but not containing lime and catechu. The manufacturer-appellant contended before the Original authority that the officers conducted search of the said two units and later treated the said two FFS machines found in said two manufacturing premises as undeclared machines purchased by the manufacturer-appellant. They further submitted that officers noticed one pouch packing machine in each of said two premises, allegedly mounted with laminated rolls of VIKAS Brand Gutkha and certain raw materials and that officers taken photographs of the machines found in the said premises and slapped the ownership of the premises along with raw materials to the manufacturer-appellant, projecting the premises as unregistered premises of manufacturer-appellant and fastened the duty liability on the same. They further submitted that the registered premises of manufacturer-appellant was a part of house compound bearing no.130/1309, Bagahi, Kanpur. Before the Original a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner of Central Excise, Kolkata reported at 2015 (324) ELT 641 (SC). VI. Without establishing leave between the appellants as well as two pouch packing machines no reliance can be placed on the statement of lamination supplier Shri Arpit Jain and Shri Vikas Agrawal as well as Supplier Shri Dilip Kumar, since cross examination was denied and neither there was any recovery of finished goods like VIKAS Brand Gutkha nor any such recovery from the market to establish that the appellants were engaged in the manufacture and clearance of such goods. VII. He has further taken us through affidavit of Shri Rajendra Singh, landlord of the premises verified on 08.12.2010 available at page no.296 of appeal paper book. The learned Counsel submitted that through the said affidavit the landlord of the premises of 130/1309, Bagahi, Kanpur had submitted that premises in which one FFS Machine was found was rented to Shri Har Narayan Gupta who was partner of M/s Anandeshwer Enterprises and the other premises in which another FFS Machine was found was rented to Shri Gaurav Enterprises. The learned Counsel further brought our attention to other affidavits available at page no.298 to 332 filed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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