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TMI Blog2023 (11) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... om premises of M/s Laxmi Tobacco Company, situated near Bahucharaji Mata Temple, Village Vasna, Taluka Borsad, Distt. Anand, Central Excise Officers searched premises of M/s. Laxmi Tobacco Company on 19.09.2013. The Officers noticed that in Godown No.3 of said premises of M/s Laxmi Tobacco Co., two Pouch Packing Machines (Form, Fill and Seal - FFS) were found installed and in working condition manufacturing notified goods i.e. "Pan Masala Containing Tobacco" falling under tariff 2403 99 90, known as "Gutkha". It was also noticed that duplicates of leading brand of "Vimal", "Rajkolapuri", "Gomti" were being manufactured there. During said search, it was also noticed that the notified goods were being manufactured without Central Excise Registration and no duty was paid under Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008. Therefore, the said 2 Pouch Packing Machines, Raw Materials and Packing Materials found were placed under the seizure. Machines and goods valued at Rs. 15,53,700/- were seized under Panchnama dated 19.09.2013 drawn at premises of M/s Laxmi Tobacco Company, under reasonable belief that the same were of offending nature and go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of the two seized Machines and the goods seized during search on 19.09.2013, which can be seen from the followings :- a) Specific intelligence for illicit manufacturing and clearance of "Gutkha", was in respect of M/s Laxmi Tobacco Company, situated near Bahucharaji Mata Temple, Village Vasna, TalukaBorsad, Dist. Anand, Gujarat. b) Excise Preventive Officers raided & searched premises of M/s Laxmi Tobacco Company on 19/09/2013, details of which were recorded in Panchnama dated 19.9.2013 drawn. c) During the said search, the Central Excise officers noticed that in the Godown No.3 of M/s Laxmi Tobacco Co., 2 Pouch Packing Machines (Form, Fill & Seal - FFS) were found installed and in working condition manufacturing duplicate brands of notified goods i.e. "Pan masala containing tobacco" falling in CTH 2403 99 90, known as "Gutkha". Duplicates of brand names of "Vimal", "Rajkolapuri", "Gomti" were manufactured. During search, some quantities of notified goods of various brands, raw materials / packing materials required to manufacture such "Gutkha" were found in premises. Notified goods were manufactured without Central Excise Registration and duty was not paid under Pan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Act 1944. l) Except the statements, there is no evidence to show that undeclared Pouch Packing Machines were owned by Appellant and actual manufacture was carried out by Appellant and cleared the notified gutkha without payment of duty and Appellant received sale proceeds of such notified goods. m) In view of the above, there is no tangible evidence to prove that Shri Pareshbhai R Amin is a manufacturer, liable to pay duty with interest and penalty. There is no evidence to connect Shri Pareshbhai R Amin with actual manufacturing notified goods, except statements, which are not valid under the law. In absence of any independent and/or tangible or corroborative evidences on record against Shri Paresh R Amin, he cannot be considered as the manufacturer liable to pay duty, interest and penalty. 4.1 Shri Jadeja submits that levy of duty under Central Excise Act is on "manufacture" as defined in Section 2(f) of Central Excise Act, 1944 and the person who carries out "act of manufacture" is only "manufacturer" who is liable to pay duty becomes an "assessee" by virtue of Rule 2(c) and has to take Registration as per provisions of Rule 9 of Central Excise Rules, 2002. However, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise Act 1944, "factory" means any premises, including the precincts thereof, wherein or in any part of which excisable goods are manufactured, or wherein or in any part of which any manufacturing process connected with production of these goods is being carried on or is ordinarily carried on. Except the confessional statements recorded around search on 19.09.2013, There is no independent supporting evidence brought on record to indicate (i) clandestine manufacture; (ii) clandestine/ disproportionate/ unaccounted purchase, receipt, consumption of inputs and packing material, required for manufacturing quantity of Gutkha clandestinely from factory; (iii) freight payment for any such movement; (iv) unauthorized payment for procuring unaccounted inputs and packing material; (v) disproportionate power consumption, capacity utilization and labour employed; and (vi) unaccounted sales proceeds in substantial cash from factory or office premises in direct control of Shri Pareshbhai Ramanbhai Amin, backed by confirmation giving by anyone on such transaction. Thus Link between Machines found installed in factory of someone else and documents recovered in search and activities of this Appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to fasten duty liability against this appellant Paresh Amin. Thus, the order-in-original qua Appellant is bad in law and duty demands and penalty imposed deserves to be set aside allowing Appeal by Shri Paresh R. Amin. 5. Shri Tara Prakash, Deputy Commissioner (AR) appearing on behalf of Revenue, reiterates the facts of seizure of two PPM and the goods found on 19-09-2009 as well as finding of the impugned order-in-Original. He also submits to reject the Appeals filed by Appellants. 6. We have carefully considered the submissions made by both sides and perused relevant records. The main issue is to decide/ascertain who is the manufacturer liable for payment of duty in this case. There is no dispute on the facts that on a specific information, Central Excise Officers have detected an unregistered factory on 19.09.2013, where 2 Pouch Packing Machines [PPM] were found installed and in working condition, manufacturing notified goods i.e. "Pan Masala Containing Tobacco" known as "Gutkha". Some notified goods, raw materials and packing materials totally worth Rs. 15 lakhs required to manufacture such "Gutkha" were also found lying there, which are seized on 19.09.2013. Both the sides ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hman Exports Limited v. CCE - 2002 (143) ELT 21 (S.C.) for the proposition that whenever any statement is relied upon, opportunity to cross-examine maker of statement be given. Decision in J & K Cigarettes Limited v. CCE in 2011 (22) STR 225 (Del.) is also relied upon by Paresh Amin in reply to show cause notice. 6.2 In view of the above, we are of the considered view that there is no clinching tangible evidence or any corroborative evidence against Appellant Shri Paresh R Amin to connect him with actual manufacture and also to establish him as a manufacturer. Thus, Shri Paresh R Amin cannot be treated as the manufacturer liable to duty, interest and penalty in this case. However, the facts of seizure of two PPM found duly installed and goods seized in the premises on 19.09.2013 also have to be considered independently even without the support of any such of statements. It is undisputed fact that the premises where the said two PPM were found installed and raw materials, packing materials and finished goods seized in the premises on 19.09.2013 was actually the premises of the said M/s Laxmi Tobacco Company and it belongs to Shri Purshottambhai C Patel. It is a fact that Shri Pursh ..... 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