TMI Blog2002 (4) TMI 181X X X X Extracts X X X X X X X X Extracts X X X X ..... without tobacco. Their premises were raised by the central excise officers on different dates. It was noticed that 6 bags of pan masala, gutkha were being removed on two rickshaws, 17 bags of pan masala and gutkha were found excess over and above the RG-I stock. 367.984 kgs. of gutkha, 70.6 kgs. of sada masala and 5859.9 kgs. supari, were found short. On examining the documents resumed from the premises of the appellant No. 1 company, it also came to light that 74 bags and 496 packets of Pukar gutkha, had been removed without payment of duty and the details of which were available in 16 loose slips. Another 40 bags of Pukar gutkha were also found to had been removed through M/s. Narain Transport Forwarding Agency in contravention of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se notices were also issued to the appellants Nos. 5 and 6, authorised signatories of the company appellant No. 1 and to appellant No. 7, being accountant of that company vide which the duty demand of the disputed amount was raised from the company appellant No. 1 and penalty was also proposed to be imposed on other appellants. After getting their reply wherein they denied the allegations as contained in the show cause notices, the Commissioner passed the impugned order vide which he had confirmed the duty along with the penalty and interest on the company appellant No. 1 and imposed penalty on the other appellants under Rule 209A of the Central Excise Rules. 3.The learned Counsel has contended that there is no cogent, convincing and con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of his statement, the learned Commissioner has presumed the clandestine receipt of the supari from the above said two firms and manufacture of pan masala with and without tobacco, out of that supari and removal of the same without payment of duty by the company appellant No. 1. The other facts which had influenced the learned Commissioner for passing the impugned order are that the company appellant No. 1 as well as other two firms M/s. U.P. Marketing and R.P. Product were being managed and run by Shri Udey Chaurasia appellant No. 2 and his other family members as the common employees were working for these concerns and that the entire affairs of the company appellant No. 1 were within the knowledge of the appellant No. 2 alone. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri in R.P. Products is already found short, it can safely be inferred that it had gone to Durga Trading Co." From this statement of Udey Chand Chaurasia, we are unable to persuade ourself to accept that there was clandestine supply of the supari by his firm M/s. U.P. Marketing or by M/s. R.P. Product to the company appellant No. 1. The observations of the Commissioner that "since the stock of supari in the R.P. Product was already found short, it could be safely inferred that it has gone to Durga Trading Company, (appellant No. 1)" cannot be said to be well founded. Such an inference could not be legally drawn by the learned Commissioner without seeking corroboration from the other evidence. No document whatsoever was resumed from the off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reof without discharging the duty liable by an assessee, cannot be established on assumptions and presumptions. Such a charge has to be based on concrete and tangible evidence. In this context, reference may be made to Oudh Sugar Mills Ltd. v. Union of India - 1978 (2) E.L.T. (J 172) (S.C.), wherein the Apex Court has observed that demand of duty cannot be raised on the strength of assumptions and presumptions. There should be sufficient evidence of the removal of the goods alleged to have been manufactured and cleared without payment of duty. The charge of clandestine removal must be based on tangible evidence and not on inferences involving unwarranted assumptions. This very principle of law had been applied by the Tribunal in a number of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the same amount. The confirmation of demand of Rs. 1,48,032/- and Rs. 76,800/- (since debited) with equal amount of penalty, has been also not challenged before us and as such, the same is upheld. Therefore, the amounts of all the above referred confirmed demands, shall be adjusted from the duty amount already deposited by the company appellant No. 1. 12.However, the imposition of penalty of various amount, as detailed in the impugned order itself on appellant Nos. 2 to 7 by the learned Commissioner, cannot be legally sustained for want of any evidence to prove the ingredients of Rule 209A of the Central Excise Rules under which the penalty had been imposed. The role of these appellants had not been discussed for holding them guilty u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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