9911796707
TMI Blog2022 (5) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... Separate penalty Rs. 2,00,000/- is imposed on Shri Dineshbhai Patel. 1.1 Brief facts are that appellant was engaged in manufacturing of Ceramic Floor Tiles of Chapter 69 of the Central Excise Tariff Act, 1985. Search was conducted on 01-01-2010 by Central Excise officers in Appellant's factory which resulted in recovery of some pink coloured invoices marked as DUPLICATE FOR TRANSPORTER for months of November 2009 to December 2009, which allegedly not tallied with regular sales invoices. Revenue's case is that appellant had clandestinely cleared Ceramic Tiles involving Central Excise duty of Rs. 14,04,620/- against said parallel Invoices recovered from Labourer's room in factory. During Investigation statements of partners and others were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 9D of the Central Excise Act 1944. 1.3 Accordingly, in second round of litigation, cross examination of 7 witnesses was allowed. The case was adjudicated under the Order-In-Original No. CEX-003-ADC-AJS-005-18-19 dated 30.8.2018, which has dropped duty demand of Rs. 5,38,033/- and confirmed demand of Rs. 8,66,588/- along with interest and has imposed penalty on M/s Sohni Ceramics, Mansukhbhai Patel and Dineshbhai Patel. However, on Appeal, Order-In-Original dated 30.8.2018 was upheld except dropping penalty on Mansukhbhai Patel by O-I-A No. AHM-EXCUS-003-APP-163 to 165-2018-19 dt. 31-12-2018. Hence, these 2 Appellants only are before this Tribunal now. 02. Shri P. P. Jadeja, Authorized Representative appearing on behalf of Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely M/s Arbuda Marketing, Himatnagar, M/s Jain & Jain, Himatnagar and M/s Trimurti Enterprise, Himatnagar were searched and their relevant purchase & sales Bills were withdrawn for months August 2009 to December 2009. No offending goods were recovered from any of these premises or from any other premises. During Enquiries with Transporters, the document like bilty issued to Appellant for November 2009 and December 2009 were also withdrawn. During inquiry at Buyer's end, Statements of 9 persons were recorded. SCN for the duty demand of Rs. 14,04,620/- was issued on 04-07-2013. 4.1 In second round of litigation, the case was taken up for fresh adjudication by jurisdictional Additional Commissioner of Central Excise, Gandhinagar Commissionera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sigma Tiles, M/s Simandhar Developers and M/s Wardhman Ceramics as shown in Table in para 14.2 of the said Order-In-Original dated 31-08-2018. Statement of other buyer referred to in Invoices shown in Annexure A-2 have not been recorded and hence it can be concluded that there is no confirmation of receipt of goods by remaining buyers of goods under the said parallel Invoices. Revenue has not produced any clinching positive evidence of such receipt of goods by those buyers. Revenue has not proved their case in respect of 115 Invoices, where duty is confirmed by Order-In-Original dated 31-08-2018. There is no evidence either in the form of their statements or any other corroborative evidence in respect of those 115 Invoices and buyers who a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Duty demand of Rs.8,66,588/- is confirmed without ascertaining actual manufacture of goods and removal thereof from factory. Revenue has relied upon statements, without cogent evidence of receipt and consumption of quantity of basic raw materials and packing materials required for manufacture of goods cleared on parallel Invoices, payment for procuring excess raw materials and packing materials used for manufacture of goods cleared. Duty of excise is levied on manufacture of goods and without proving manufacture first, alleged clandestine removal of goods on the parallel Invoices is also not proved. Investigation has not discharged burden to prove clandestine manufacture and clearance of the goods clandestinely twice on such parallel invoic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts of this case. 4.3 Separate penalty is imposed on Shri Dineshbhai Patel, which is not justified following the decision of the Hon'ble Gujarat High Court in the case of Pravin N. Shah v/s UOI - 2014 (305) ELT-480 (Guj) and in Rathi Re-Rolling Mills v/s CCE - 2015 (327) ELT-18 (Bom). Such penalty imposed on Shri Dineshbhai Patel deserves to be set aside and I do so. 4.4 Hence, as per the above discussions and findings, I hold that Order-in-Appeal No. AHM-EXCUS-003-APP-163 to 165-2018-19 dated 31-12-2018 by the Commissioner (Appeals) of Central Excise, Ahmedabad to the extent it confirms duty, interest and penalty is not sustainable in the facts of this case. Consequential interest and penalty imposed on both the Appellants does not su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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