TaxTMI 
TaxTMI 
2017 (3) TMI 1090
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....o. 1400/2010). The impugned order inter-alia imposes penalty of Rs. 2 lakhs each under Rule 26 of Central Excise Rules, 2002 on both of these appellants. 2. Briefly the allegation of the department is that the appellant assessee M/s. Tara chand Naresh chand is clandestinely manufacturing and removing gutka without payment of duty by alleged increase in the speed of gutka making machines i.e. by making 80 number of pouches per minute instead of 60 pouches per minute. The department recorded statements of Shri Tarachand, partner of assessee firm inter alia stating that the factory was in operation from 5.30 AM on 19.3.2008 whereas the standard working time was 7 AM to 6 PM. The lower authorities confirmed the demand for the period of 14.11.07 to 19.3.08 i.e. from the date (13.11.07 ) of earlier verification of the speed of machines installed in the factory and till 19.3.2008, the date of the visit of Revenue officers. 3. The Appellants have been represented by the learned Advocate, Shri A R Madav Rao and Revenue has been represented by Shri R K Manjhi, the learned DR. 4. The learned Advocate based on the memorandum of appeal and written submissions inter alia mainly submits as und....
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....eighed in 10 minutes packing material of 152 kilograms to arrive at the shortage of 6.5 KG's. They had also counted 57,600 pouches of gutkha. The shortage of raw material is attributed to this production. iii) The cooked up mathematical precision of the Department is further reflected that from 5.30 AM to 6.10 AM, i.e. exactly 40 minutes, they arrived at the exact figure of number of pouches of 57,600, at 80 pouches per minute for 18 machines run for 40 minutes. The trial run was presumably conducted thereafter of three minutes each on 18 machines resulting in a further production of 4320 pouches, which the appellants totally deny as having taken place. iv) While it is the case of the appellants that all these figures were totally cooked up and no such speed of the machines was checked up, and no panch witnesses were ever present and Mr. Tarachand the partner was coerced into giving an inculpatory statement, the Department has rejected these contentions. Appellants had submitted that the production of 57600 pouches was done by using the machines at a speed of 60 pouches per minute run for 50-55, which will give roughly the same figure of 57600 pouches. No production of 4320 pouch....
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....ir purpose under RTI, filed all these to the Commissioner. The surprise visits after 13.11.07 are 23.11.2007, 10.12.2007, 28.12.07, 3.1.2008, 29.1.2008, 11.2.2008, 21.2.2008, 13.3.2008, where the machines themselves were checked up, 19.3.2008 (seizure memo) and 7.3.2008. Mr. Manwani apart from the visit on 19.3.2008 had also visited the factory on 7.3.2008 as also on 31.1.2008. ix) Even assuming the version of the Department is to be accepted that the machines were running at the speed of 80 pouches per minute on 19.3.2008, the Commissioner has held that since the last speed of the machines was checked on 13.11.2007, it would be presumed that right from 14.112007 onwards till the next check on 19.3.2008 the higher speed at 80 pouches per minute was adopted by the appellants. This conclusion is totally far-fetched and unsustainable, and without taking into account that on 13.3.2008 itself the running of the machines had been checked. Even otherwise the assumption can only be that on and from 19.3.2008, the machines are being run at a higher speed of 80 pouches per minute and not that retrospectively from November, 2007 machines are being run at a higher speed. Without any proof as ....
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....chart was prepared for the same and Shri Tara Chand has consciously signed the stock taking report. When the statement of Shri Tara Chand, partner himself has been taken need of taking statement of illiterate labour does not seem to be of any relevance. (ii) Shri Tara Chand, partner of the firm himself has declared that he has given the statements willfully and without any pressure. Grant of bail from the court of law does not at all mean that the alleged demand is dropped. iii) Shri Tara Chand has not denied the speed of the machine found at the time of physical verification on 19.3.2008 in his retraction dated 24.3.2008. He has not refuted the presence of respectable independent witnesses at the time of panchnama proceedings on 19.3.2008. He has not made any allegation in the retraction letter dated 24.3.2008 that the witnesses who had witnessed panchnama i.e. Shri Rishabh Jain and Shri Rakesh Rawat are of vulnerable antecedents. There is no abjuration to the fact that the witnesses were not informed of the purpose of visit to the factory and purpose of test employed during the investigation. He has also not declined the various checks exercised over the records maintained by t....