TaxTMI 
TaxTMI 
2016 (11) TMI 1172
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....gendra Singhal, who was authorized signatory of M/s P & J Aromatics. They searched premises of the supply of packing material, premises of road transporter at Agra and Hindon, premises of dealer at Hindon and premises of dealer at Jaipur. During the search, some quantity of goods manufactured and various quantities of raw materials were seized. Statements of various persons associated with above stated premises were recorded. On the basis of investigations carried out at the end of transporter, namely M/s Bharat Freight Carrier (referred as M/s BFC) and on the basis of information obtained from Railway Authorities in respect of goods booked for transportation by Railway obtained, it appeared to Revenue that M/s P & J Aromatics evaded Central Excise duty on Jeet & Andaaz brand Gutkha by removing the goods clandestinely without payment of Central Excuse Duty. Statement of Shri Vijay Singh, Booking Clerk of M/s BFC, Agra, was recorded on 14.12.2005 & 20.12.2005. Statement of Shri Uttamchand, Manager of M/s BFC, Hindon, was recorded on 14.12.2005. Statement of Shri Saiyed Tajammun Islam, partner of M/S BFC, was recorded on 22.02.2006. Statement of Shri Neeraj Goyal, partners of M/s Kur....
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....presumptions, M/s P & J Aromatics, Agra was issued with a show-cause-notice dated 09.06.2006 calling upon M/s P & J Aromatics to show cause as to why following goods seized should not be confiscated under Rule 25 of Central Excise Rules, 2002 :- (i) 33372 number of pouches of Jeet Brand Gutkha (MRP Rs. 0.50) valued at Rs. 8343/- (after abatement of 50%) seized at Unit No.1 of Noticee No.1. (ii) 5 bags of Jeet Brand Gutkha valued at Rs. 20655/- and 8 bags of Andaaz Brand Gutkha valued at Rs. 36,192/-, seized at Unit No.II of Noticee No.1 on 14.12.2005. (iii) 109 bags of Jeet Brand Gutkha valued at Rs. 4,50,279/- and 98 bags of Andaaz Brand Gutkha valued at Rs. 443352/- cleared clandestinely and stored at godown premises of Noticeee No.1 at 34/54/4A, Near Sitaram Colony, Agra, seized by the officers on 14.12.2005. (iv) 8 bags of Andaaz Brand Gutkha valued at Rs. 37,584/-, seized at godown premises of Noticee No.1 at OA/02-07, Sita Ram Colony, Balkeshwar, Agra on 14.12.2005. (v) 2 bags of Jeet Brand Gutkha valued at Rs. 8,262/-, seized at M/s Akhil Sales Agency, Jaipur on 02.05.2006. (vi) 18 bags of Jeet Brand Gutkha valued at Rs. ....
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.... stated that none of the GRs issued by M/s BFC for transportation of Pashu Ahaar had any mention of either their name or their Brand on the same. Therefore, all entries of Pashu Ahaar to be treated as clearance of Gutkha without payment of duty is mere presumption. They further contended that all the dispatches of Zarda Gutkha/Zarda Pouch from Agra Fort Railway Station was presumed to be the goods manufactured by appellant, whereas no such document is relied upon to establish any connection of appellant with the transportation of Gutkha transported through Railway and compiled in the information submitted by the Railway Authorities without any connection getting established between entire quantity of Gutkha transported by Railway during the period of demand with the appellant to demand duty on all the quantity of Gutkha transported by Indian Railway after being booked at Agra Railway Station, was without authority of Law. Further, they demanded cross-examination of witnesses before the Original Authority. Cross-examination of following persons was conducted before the Original Authority. 1. Shri Burhanuddin Assistant Commercial Tax Officer, Ailabad, division, Govt. of Andh....
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....s were taken by Investigating Officers under threat and all of them have retracted their statement during cross-examination. They further submitted that the persons associated with M/s BFC have during cross-examination depose that Gutkha was not booked under the guise of Pashu Ahaar. They further submitted that the dealers were cross-examined and during cross-examinations, the dealers have stated that Officers had promised them that if the dealers give statement as desired by the Officers, they would not be subjected to any personal penalty under Rule 26 of Central Excise Rules and therefore, the statements of dealers before the Officers cannot be relied upon. They further submitted that department has not brought any independent or corroborative evidence to show that all the Railway receipts which were issued by Railway pertaining to booking of Gutkha had any mention of the Brand manufactured by them, name of the manufacturer and that there was no evidence to establish that goods booked as Gutkha through Railway were manufactured by them. 7. Further, in respect of cross-examination of raw materials supplier, they submitted that whenever raw material was purchased, it was duly a....
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....s of Jeet brand Gutkha valued at Rs. 20,655 (Rs.Twenty Thousand six hundred Fifty Five only) and 8 bags of Andaaz brand Gutkha valued at Rs. 26,192 (Rs. Thirty Six thousand one hundred Ninety Two only) under Rule 25 of the Central Excise Rules, 2002 sized at Unit No.II of the Noticee No.1. As the goods have already been released to the Noticee No.1 vide provisional release order dated 11.10.2006 after execution of B-11 Bond and furnishing cash security of Rs. 23,876/- (Rs.Twenty Three Thousand Eight Hundred Seventy Six only), I order to appropriate cash security in lieu of redemption fine. (iv) Confiscate the goods seized at Unit No.II of the Noticee No.1 i.e. 1282.4 Kg Jeet brand lamination valued at Rs. 1,60,335/- (Rs.One lac Sixty Thousand Three Hundred Thirty Five Only) under Rule 25 of the Central Excise Rules, 2002. However, I give an option to the Noticee No.1 to redeem the same, in lieu of confiscation, on payment of redemption fine of Rs. 40,000/- (Rs. Forty Thousand Only) (v) Confiscate the 109 bags of Jeet brand Gutkha valued at Rs. 4,50,279/- (Rs.Four Lac Fifty Thousand Two Hundred Seventy Nine Only) and 98 bags of Andaaz brand Gutkha valued at Rs. 4,4....
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..... However, I give an option to the Noticee No.1 to redeem the same, in lieu of confiscation, on payment of redemption fine of Rs. 1,92,870/- (Rs.One Lac Ninety Two Thousand Eight Hundred Seventy Only). (x) confiscate the 6417 Kgs of Jeet brand lamination & outer, valued at Rs. 8,39,500/- (Rs.Eight Lac Thirty Nine Thousand Five Hundred only) seized at Godown of the Noticee No.1, near Mahajan Market, Balaji Nagar, Agra under Rule 25 of the Central Excise Rules, 2002. However, I give an option to the Noticee No.1 to redeem the same, in lieu of confiscation, on payment of redemption fine of Rs. 2,09,875/-(Rs.Two lac Nine Thousand Eight Hundred Seventy Five only). (xi) I confirm the demand of Central Excise duty of Rs. 5,63,686/- (Rs.Five lacs Sixty Three thousand Six Hundred Eighty Six only) surcharge of Rs. 56,639/- (Rs.Fifty Six Thousand Six Hundred Thirty Nine only) cand cess Rs. 12,401 (Rs. Twelve Thousand four hundred one) against Noticee No.1 under Section 11 A(2) of the Central Excise Act, 1944 on the finished goods seized out side the premises of the Noticee No.1 as mentioned at Para No.46.2 of the show Cause Notice. (xii) I also confirm the demand of....
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....ue to establish any of the said aspects. He further made following submissions during hearing : (a) Shri Vijay Singh during his cross-examination on 16.10.2007 before the Original Authority has stated that their transport company never carried Jeet and Andaaz brand Gutkha in the guise of Pashu Ahaar and that he totally denied that his transport company was engaged in transportation of Jeet and Andaaz brand Gutkha in the guise of Pashu Ahaar. Further, Shri Uttam Chand Jain was cross-examined before the Original Authority on 27.06.2007. Shri Uttamchand Jain in his cross-examination has stated that they had never transported Gutkha of Jeet & Andaaz brand where description in the billty was that of Pashu Ahaar and the consignments of Jeet and Andaaz brand Gutkha were received on the strength of bills. Shri Saiyed Tajammun Islam during his cross-examination on 04.10.2007, has stated that his statement was recorded under threat by the Officers and that he was compelled to say that statement of Shri Vijay Singh and Shri Uttam Chand were correct and further stated that infact he was not aware of anything about the manner of transportation of Gutkha, manufactured by either M/s P & J Arom....
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.... the entire Zarda Gutkha booked at Railway Station of Agra during the period of show cause notice was manufactured by M/s P & J Aromatics and cleared clandestinely and with such presumption annexure No.D & E were prepared and it was alleged that 45057 bags of Gutkha were cleared by M/s P & J Aromatics without payment of duty and on perusal of information available at Pages 1784 to 1990 of Appeal paper book indicate that there is no proof that said goods were manufactured by M/s P & J Aromatics. (f) Nothing incriminating was found in the statement of account given to investigators by supplier of bettle nuts Shri Vimal Kumar Jain and that bettle nut is a major ingredient for manufacture of Gutkha and there was no evidence that there was un-accounted procurement of raw materials. He further argued that Rule 25 of Central Excise Rules, 2002 does not authorize confiscation of raw materials or inputs. 9. The learned DR has supported the finding of Original Authority. 10. Having considered the rival contentions, we find that billty books and challans resumed from transporter M/s BFC are not relied for issue of show cause notice and it is claimed by Revenue that Annexure-A to the ....