TMI Blog2019 (6) TMI 1349X X X X Extracts X X X X X X X X Extracts X X X X ..... Though Shri Ajay Kumar Shah who was accompanying the consignment made a call to his factory but the subject matter of the call is not available with the Revenue. Making a call by itself intimating the office persons as regards interception of the truck will not go to prove that the excise invoice was made on receipt of such information. The said findings of the Lower Authorities are based upon the assumption and presumption. As such, inasmuch as the goods found loaded in the truck and intercepted by the officers have already discharged their duty burden, there is no reasons to confiscate the same. Shortages of goods - HELD THAT:- There is no evidence to show that the said goods have been cleared by the assessee without payment of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is engaged in the manufacture of Chewing Tobacco. On 23/02/2005, the officers of Central Excise intercepted one truck loaded with the said goods. Driver of the truck informed the officers that the same were loaded from the factory of the appellant. One Shri Ajay Kumar Shah, who was accompanying the truck presented the challan dated 23/02/2005 in duplicate issued by appellant s factory located at Noida covering consignment in question. 2. Subsequently the officers visited the appellant s factory and conducted various checks and verification. Shortage in the stock of the final product as also the raw material was detected. Shri Rattan Kumar Bhalla accountant of the Company in his statement could not give any valid reasons for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wner of Truck Shri Mangey Ram to redeem the same on payment of redemption fine of ₹ 5,000/-. Penalty of ₹ 10 lakhs was imposed upon the manufacturing unit and ₹ 1 lakh on Shri Rattan Kumar Bhalla accountant and ₹ 1,000/- on Shri Mangey Ram truck owner. On appeal, the said decision of the Additional Commissioner stands upheld by the Commissioner (Appeals) and hence the present appeal. 5. On going through the impugned order, I find that the Revenue has confiscated the seized goods loaded in the intercepted truck on the ground that the same has been cleared without payment of duty. However it is on record that the said goods were accompanied by a challan and the Central Excise invoices, has been issued by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty. It is well settled law that findings of clandestine removal cannot be upheld on the basis of shortages detected in the stock at the time of visit of the officers. Reference can be made to the Hon ble Punjab Haryana High Court decision in the case of Commissioner of Central Excise Service Tax, Ludhiana vs. Anand Founders Engineers 2016 (331) E.L.T. 340 (P H) as also to Hon ble Gujarat High Court decision in the case of Commissioner of Central Excise, Customs Service Tax, Daman vs. Nissan Thermoware Pvt. Ltd. 2011 (266) E.L.T. 45 (Guj.) and to Hon ble Allahabad High Court decision in the case of Commissioner of Central Excise, Kanpur vs. Minakshi Castings 2011 (274) E.L.T. 180 (All.). As such, I find that Central Excise offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I find that apart from the fact that the Currency in question was not recorded in the cash book records, Revenue has not advanced any reason to show that the same was the sale receipts of the smuggled goods. Accordingly, I set aside the confiscation of the Indian Currency. 8. Inasmuch as the demand have been set aside against M/s Prabhat Zarda Factory (India) Ltd. alongwith setting aside of confiscation of Indian Currency, the penalties imposed upon them as also on the other two appellants are required to be set aside. For the similar reasons the confiscation of the truck is also required to be set aside, I order accordingly. 9. In a nutshell, all the three appeals are allowed with consequential relief to the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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