TaxTMI 
TaxTMI 
2017 (2) TMI 618
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....ucted searches at factory premises of M/s Hira Enterprises. Searches were also conducted at premises of dealer M/s Super Trader at Mumbai and Bhiwandi which led to recovery of sheets alleged to be containing details of quantity purchased from M/s Hira Enterprise. The officers also detained goods from the Bhiwandi premises of M/s Super Trading. Statement of Shri Mohd. Arshad proprietor of M/s Super Trading was recorded on 26.07.2002 wherein he stated that they are receiving goods under cover of central excise invoice. Sometimes they have received 'Hira' gutka without payment of duty. That the details stated in records seized from his premises pertains to clearance of 'Hira' brand Gutka to different parties and amounts received from them. That the payment to M/s Hira Enterprise was made through demand draft only. Statement of Shri Sajan Hasan Shah, Sales Incharge of M/s Hira Enterprise was also recorded wherein he stated that he looks after sale of goods and has also employed services of Shri Arshad F Khan, proprietor of M/s Super Trading to sell the products having office at Bhiwandi. Shri Arshad F khan in his statement dt. 27.08.2002 stated that Hira gutka is received in gunny bags....
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....ies. 3. Shri. Jaikumar, Ld. Counsel with Shri. Kartik Jindal, Advocate and Shri. Ganesh R.S. Iyer, Advocate appeared on behalf of the assessees. Ld. Counsel for the assessee submits that the demand of duty of Rs. 31,50,075/- confirmed against them is not sustainable as the same are against Commissioners own findings on the basis of which the other demand was dropped. That the adjudicating authority while dropping bulk of demand has already discarded set of documents viz. chits of dealer on the ground that the same do not represent credible and reliable evidence. That once it is held so the same documents cannot be relied upon for confirmation of other demand. That M/s Super Trading in addition to selling of goods of M/s Hira are also selling goods of other manufacturers i.e cigarettes, gutka, matches etc. They are not sole selling agent of M/s Hira and is not related with M/s Hira only. The said firm is like other dealers based at Nashik, Dhule, Ahmednagar, Aurangabad selling goods of assessee firm. That the adjudicating authority also admitted the above facts and it was also admitted that the chits do not indicate any brand name least "Hira"/ "BaOba" brand in respect of gutka re....
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....sportation. That nowhere there is admittal that in respect of all consignments by M/s Hira they had resorted to packing of 5 - 6 bags in gunny bags. Department has not been able to corroborate this aspect by way of evidence as they have relied only upon the chits found with M/s Super Trading. In the absence of any other evidence to the extent of money being paid or transport documents to substantiate the actual quantum of goods alleged to be have been cleared, the clandestine removal cannot be alleged. That there is no evidence that M/s Hira Enterprise has done any unaccounted excess production. Goods lying with dealers/ traders and selling agents not to be confiscated merely on the ground that it failed to co-relate with the duty element with the goods. That against the said order of Commissioner (Appeals) revenue filed appeal before CESTAT who vide Final Order 11.07.2008 rejected the appeal file by the revenue. That in the light of above judgment of CESTAT on the same set of facts, evidence and investigation the department's case does not stands. He also submits that the reliance placed upon the judgment of CCU, Madras Vs. D.Bhoormull [1983 (13) ELT 1546 (SC)] is not applicable a....
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....,50,075/-. However as regard the Revenue's appeal seeking demand of Rs. 1,09,40,463/- he submits that from the statements recorded and papers seized from M/s Super Traders it is apparent that the goods were cleared by M/s Hira Enterprise without payment of duty. He further submits that during physical verification of the stocks on 26.07.2002 at premises of M/s Super Trading, they were not able to provide duty paying documents. That in their statements Shri Aslam proprietor of M/s Hira Enterprise accepted the removal of goods in excess of invoices quantity indicated in gunny bags. That Shri Arshad of M/s Super Traders also accepted that they have received invoice for less quantity and also explained the records seized from premises of M/s Super Traders. That the seized records of M/s Super traders shows clearance of goods, amount received and balance amount which evidences clearances of goods by removal of goods. That M/s Super traders were not able to produce the duty paying documents of goods which were shown in the records. In his support he placed reliance on following judgments: (a) Commissioner V/s. Shiva Steel Re-rolling Mills -[2016 (337) E.L.T. A94 (Bom.)] (b) Padmashri V....
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....rthcoming from the investigation as to whether such packing was undertaken in all clearances or was limited to only some clearances. No document, record has been unearthed which can show that the assessee firm was undertaking the goods in packing 5 or 6 bags of goods in each gunny bag and was clearing the same to M/s Super Trading. The investigation has remained inconclusive as the clearances record, transportation and receipt of amount by assessee firm towards such excess clearances has not been adduced to bring home the charges of clandestine removal. We find that M/s Super trading being engaged in trading of goods of other manufacturer also and there records cannot be a basis to allege that the goods manufactured by M/s Hira Enterprises were cleared clandestinely. Though the statement of Shri Aslam, Partner of M/s Hira Enterprise has been recorded but the same is not supported by any Independent evidence as nothing incriminating was seized from the premises of M/s Hira Enterprises and hence his statement has to be construed as being in isolation and non corroborative. The adjudicating authority while setting aside the demand of Rs. 77,90,388/- has relied upon the bunch of decisi....