TaxTMI 
TaxTMI 
TaxTMI 
2003 (3) TMI 574
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....he lorry. However, he produced Memo No. 807/8-1-95 (two copies) of Prestige Roadlines, Bangalore; Prestige Roadlines consignment Note No. 023559, dated 5-1-95; Bill No. 655/5-1-95 of M/s. Rafiq Brothers (appellants in Appeal No. E/751/98), Hyderabad (two copies) and a duplicate copy of way bill No. 1437903, dated 5-1-95. Md. Kudrathulla (appellant in Appeal No. E/354/99) is the owner-cum-driver of the said lorry, hired by M/s. Prestige Roadlines, Hyderabad. Along with the transporters' representative i.e., of M/s. Prestige Roadlines and one P. Kumar who identified himself as a machine operator in the factory of M/s. Dhariwal Tobacco Products Pvt. Ltd., Hyderabad (hereinafter referred to as DTPPL), the goods were examined. The cartons were found to be containing serial nos. marked with red sketch pen and the inscription 'Manikchand Pan Masala' in print both in English and Hindi. The serial nos. on some cartons were repeated and since the driver and the representative of the transporter and the alleged P. Kumar could not produce documents evidencing payment of Central Excise Duty and due to reasons of repetition of serial nos., the goods were seized by the Preventive staff along with....
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....and E/752/98, who were their dealers. Thus the full load of 450 cartons was made and loaded in the said lorry on 6-1-95. 4. On enquiries made further, it was revealed that :- (a) these dealers of Rafiq Brothers had prepared certain stock register which appear to be new with over writings and from the explanations it appears that the goods had been supplied to M/s. Rafiq Brothers only on 14-12-94 and 16-12-94 and not on 5-1-95. (b) the statement of the alleged unskilled labourer of M/s. Rafiq Brothers, Shri Faiyaz, revealed that he is totally illiterate and cannot write any language and that he never wrote any serial numbers on any cartons and if there was any damage to any cartons, he used to call persons residing nearby and ask them to write. He further stated that on 5-1-95, he replaced only 10-14 cartons out of 306 cartons available at the godown and he has not replaced any carton received from M/s. Balaji Agencies and M/s. Vishnu Agencies, as those cartons were in good condition. (c) the cartons and contents therein on further examination revealed that serial numbers were written on each cart....
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....9 on 5-1-95 to M/s. Arihant Enterprises, Coimbatore. Accordingly, they were directed to show cause as to why an amount of Rs. 11,23,875/- which was the duty calculated at the rate of 50% ad valorem on the goods valued at Rs. 22,47,750/- (value shown in Bill No. 655, dated 5-1-95 issued by consignment agent, M/s. Rafiq Brothers) should not be demanded. (b) Shri M. Kudrathulla, the driver-cum-owner of vehicle No. KA04-1189 was also directed to show cause as to why the vehicle should not be confiscated under Section 115(2) of the Customs Act, 1962 made applicable to Central Excise as per Notification No. 68/83, dated 4-5-83 issued under Section 12 of the Central Excise Act, 1944 and penalty should not be imposed under Rule 209A of Central Excise Rules, 1944. (c) M/s. Rafiq Brothers consignment agent, were directed to show cause as to why penalty should not be imposed under Rule 198(2) and Rule 209A of Central Excise Rules, 1944 for abetting the offence of M/s. DTPPL in the clandestine removal of 450 cartons of Pan Masala under Bill No. 655, dated 5-1-95. (d) Shri Vishnu Das Baheti, Proprietor of M/s. Vish....
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....250/- as in this case the goods have been clandestinely removed without payment of duty and, therefore, the duty element has to be added to the assessable value for determination of the duty. Relying on Standard Pencils Pvt. Ltd. v. CCE, Madras [1996 (86) E.L.T. 245 (T)] abatement of excise duty from price charged is permissible only where duty was paid on the goods. Tribunal took the same view in case of Ramraju Surgical Cotton Mills v. CCE, Madras [1996 (82) E.L.T. 86] and in the case of Auto Industries v. CCE, Madras [1995 (76) E.L.T. 325]. Since admittedly no duty was paid on the goods, no deduction towards duty payable could be allowed. Hence these appeals. 7. After hearing both sides and considering the material on record and the statements for reconciliation prepared by the appellants' advocate, it is found :- (a) The appellants have made a plea that the lorry left Hyderabad at about 10 PM on 5-1-95 and was intercepted at Kallur on the afternoon of 6-1-95 and when the lorry was intercepted, there was no case to believe that the goods were non-duty paid or there was no case for seizure of the goods. Whether the goods are duty paid or not and wh....
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.... of 450 cartons under seizure being made by M/s. Rafiq Brothers. There is no doubt that the covering documents of M/s. Rafiq Brothers were being carried in the same truck but that ipso facto cannot lead to a confirmation about the duty paid nature of the goods. If M/s. Rafiq Brothers have provided such a cover and come forward to claim the goods that would indicate a deeper involvement and pre-concert with Transport of non-duty goods. This could be a reason, to come to a conclusion that there is involvement in covering up the transport of the subject goods. The statement of Shri Faiyaz, cannot be doubted. He denies having written any numbers. He could not. He is illiterate and nothing contrary to that is brought on record by the appellants. The statement of the persons of the two sub-dealers of M/s. Rafiq Brothers is not challenged, it has to be accepted. If that is done, the claim of M/s. Rafiq Brothers to have got these 450 cartons loaded in the lorry and thereafter transporting the same to their buyers in Coimbatore fails it cannot be accepted. They have failed to satisfy the possession of duty paid 450 cartons on 4/5 January with them. The rejection, is reinforced, in view of t....
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....g slips containing the name of the filler, packer's code number, date of packing cannot be said to have been written inadvertently. Even the month of manufactured printed on the retail packages tallied with the month mentioned on packing slips except in respect of retail packages found in two cartons." The Commissioner has come to a conclusion that the major parts of the goods were manufactured in January and then packed in the factory premises of M/s. DTPPL. No material has been produced by M/s. DTPPL or other notices to prove the duty payment on the said serial numbers of the cartons during the month of January, 1995. The Advocates have submitted a reconciliation list of serial number of cartons with duty paid invoices of October, November and December, 1994. This would establish that duplicate serial nos. on cartons were being given. On a question from the Bench, the ld. Advocate for the appellants fairly admitted that Shri B. Srirama Murthy was not cross-examined. His statements have therefore gone unchallenged. In this view of the matter, when it is found that Shri B. Srirama Murthy, the Packing Supervisor of M/s. DTPPL, ....
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....e months of 12/94 and 1/95 were used earlier than the month in which they were to be used. This submission has been rightly rejected by the adjudicating authority in Para 16 of the impugned order. Since the statement of Shri B. Srirama Murthy has not been challenged and he after going through all the packing slips has confirmed the duties of packing which were majority in 1/95 i.e. January, 1995 and some in 12/94 i.e. December 1994. Moreover, this does not explain how packaging material with January, 1995 packing was cleared in October, 1994 or November, 1994 which are the invoices produced to prove duty paid nature. Therefore, the plea being made before us cannot be accepted that there is no evidence of clandestine manufacture or a removal of the duty paid goods. When majority of the goods have been proved to have been manufactured and packaged ready for marketability i.e. levy of excise duty thereon only, we cannot accept them to have been stocks of October, November, December, 1994 as was being claimed by citing the invoices of those months in the reconciliation statement prepared and submitted by the ld. Advocate. The very fact that the manufacturer M/s. DTPPL has accepted the ....
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....ce a proposal to confiscation of the 450 cartons and contents therein. (g) Following the case of Srichakra Tyres [1999 (108) E.L.T. 361], we do not accept the valuation as proposed in the Revenue's appeal. We also do not uphold the order of the Commissioner on the value of the goods as arrived at by him. On the question of valuation and the rate of duty, we would remit the matter back to the original authority to re-determine the value and the duty payable in terms of the decision of Srichakra Tyres (supra) and Rule 9A. (h) We find that Commissioner has not passed any order as regards the liability for confiscation of the 450 cartons. The appeal of Revenue has made no specific prayer against this. The prayer (a) in their appeal is to hold the said order of the Commissioner to be not legally correct and proper is accepted and the Commissioner is directed to determine the redemption fine in lieu of confiscation of the 450 cartons in the remand proceedings, if permissible under law. (i) As regards the liability for confiscation of the lorry and liability of penalty on Shri Kudhrathulla, appellant in Appea....