TaxTMI 
TaxTMI 
2017 (10) TMI 123
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....artment as 2835.718 M. Tonnes. However, the appellant in their ER-1 returns for the month of March 2003 and April 2003 filed with the department bifurcated the said stock of 2835.718 M.Tonnes Vanaspati as under:- (i) Branded Vanaspati 570.453 M. Tonnes (ii) Unbranded Vanaspati 2265.266 M. Tonnes (ii) The department made certain verifications of the records of the assessee-appellant and after further investigation came to the conclusion that the subject goods wee branded Vanaspati for which the show cause notice (SCN) dated 08.02.2005 demanding Central Excise duty was issued to the appellant. (iii) The SCN was adjudicated by the impugned order confirming the liability of duty, interest and penalty as mentioned in Para 1 above. (iv) The appellant filed appeal before the Tribunal against the impugned order. However, the appeal was earlier dismissed as non-maintainable by this Tribunal's Final Order No.A/10080/2017 dated 16.01.2017 mainly on the ground that relevant records filed by the appellants were illegible and some of the statements were in vernacular language and did not have translations. (vi) Against the said final Orde....
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.... Bhuj, Bharuch and Ahmedabad clarified during adjudication through their affidavits that the goods purchased and received by them were unbranded Vanaspati. (x) The Commissioner did not conduct/allow actual cross examination of these buyers but had allowed instead the filing of the affidavits by these buyers. (xi) The price charged from these buyers also proved that the goods were unbranded Vanaspati. 5. The Ld. DR for the Revenue vehemently contests the arguments submitted by the Ld. Advocate. He interalia submits as under:- (i) The appellant wrongly submitted before the Hon'ble High Court of Gujarat that the Tribunal dismissed about 300 or so appeals of various appellants on the ground that all the relied upon documents were not filed alongwith the appeals. As per information collected from the Registry of the Tribunal there are only 82 such appeals, which were dismissed on the said ground as non-maintainable by the Tribunal. This was a wrong presentation of the facts by the appellant before the Hon'ble High court of Gujarat. (ii) The main liability of the duty against the appellant-assessee has been proved beyond doubt as the product of the appellant is branded. ....
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..../varieties. Further, during the hearing it has also been admitted by the appellant that such brands/varieties had gained popularity among their buyers/consumers. It is also not made clear by the assessee that how and why suddenly only for the impugned period of two months, they decided to partly discontinue with the manufacturing and sale of such "branded Vanaspati". It appears that there are sufficient evidences on record that such removal of brands/varieties or identification levels factually did not happen as has been clearly indicated by the statement of Shri Vasudeo Bhagwandas Sharma, Proprietor of M/s Vikash Roadlines, Naroda, Ahmedabad, who transported the subject goods. This statement is available at Page Nos.53 and 154 of the Appeal Paper Book Set-1 presented by the appellant. The statement of Shri Vasudeo Bhagawandas Sharma Proprietor of M/s Vikash Roadlines, Naroda, Ahmedabad clearly mentions that they used to write the description of the goods as per their client's instructions only, which in this case is M/s Madhusudan Industries Ltd. He further states that wording Madhuram was later struck off and unbranded Vanaspati was written in its place but he did not know ho....
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....y doubt whatsoever that the court is obligated to take into consideration the pros and cons of both the confession and retraction made by the accused. It is one thing to say that a retracted confession is used as a corroborative piece of evidence to record a finding of guilt but it is another thing to say that such a finding is arrived at only on the basis of such confession although retracted at a later stage. 6.4 The Revenue says that the assessee made the changes in their Special Civil Supplies Register only to claim the benefit of the said notification. On the other hand, the appellant says that they have made these corrections in view of the said central excise notification and they did not have any malafide intention otherwise they would have removed or torn off the said pages. This submission of the assessee-appellant in this regard is not an acceptable defence and would not make them entitled to the benefit of the said Central Excise Notification, which is not due to them, just because of the fact that the assessee bifurcated their branded goods into two categories of branded and unbranded goods and also rewrote their register accordingly in further set of Pages No.182-1....
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....ar no logo or brand name. To this, I have to reply that we have not given any reply to the above letter dated 05.05.2003 as we have received the branded goods only. We have kept this letter on our record only. Except this, we have not received any similar letter from M/s Madhusudan Industries Ltd., Rakhiyal, in past or present. 6.6. Further this appears to be the case where the assessee is making ingenious efforts to claim the benefit of the notification to which they are not factually entitled to. Considering overall facts and the evidences on record, we are of the considered view that there are sufficient evidences on record to clearly prove that the subject goods are branded ones and are not eligible for benefit of Notification No. 6/2003 (supra). 6.7. Further in this regard, we would like to reproduce some of the observations made the impugned order, with which we agree; these are as under:- 29. The next submission of M/s. Madhusudan Industries Ltd. Is that they manufacture unbranded Vanaspati during the period 1.03.2003 to 29.4.2003 and that there is no basis to presume that all the Vanaspati cleared by their unit during this period came out of the alleged opening sto....
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....intained the register differentiating between different varieties of Vanaspati and I would like to reiterate that this register is aimed at maintaining overall stock position of Vanaspati held by our Company at Rakhial Location. On seeing this register, it is found that there is no entry showing manufacture of unbranded Vanaspati in the original account for March 2003 (pages 168 to 180). But in pages 182 to 187 of the register a new column for "unbranded" has been introduced and entries were re-made for the period 01.03.2003 to 31.03.2003. 32. It is also seen from the register that prior to 01.3.2003, there is no entry for manufacture of unbranded Vanaspati in the register. It is clear that M/s madhusudan industries have introduced the entries of unbranded Vanaspati in the register after realising that this could be cleared without payment of duty. 33.. 34.. 40. On going through the statements of the transporters, it is seen that many of the lorry receipts carried the description of the goods as "Madhuram" Vanaspati (in a few cases "Mahak"). It is seen that the word "madhuram" has been crossed out in the office copies of these lorry receipts and the entry "unbranded "ha....