2017 (12) TMI 1431

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....s. 4.43 lakhs (approx.) has been confirmed against M/s Kesarewani Zarda Bhandar along with penalty of Rs. 1,10,962/-. In addition, penalty of Rs. 10,000/- stands imposed upon Shri Krishna Chandra Kesarwani, Partner and Rs. 5,000/- on Shri Monoj Kr. Srivastava, Assistant Clerk, in terms of the provisions of Rule 26 of the Central Excise Rules, 2002. 2. As per facts on records, M/s Kesarewani Zarda Bhandar (hereinafter referred to as Kesarewani Zarda Bhandar) are engaged in the manufacture of Branded Chewing Tobacco falling under Chapter Sub-heading No.24 of the First Schedule to the Central Excise Tariff Act, 1985. 3. The officers of Central Excise under the supervisions of the Assistant Commissioner (Prev.) visited the unit of the app....

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....he duty and penalty. 6. The learned Assistant Commissioner decided the case vide Order-in-Original dated 03.06.2015 and confirmed the demand of Rs. 4,43,848 and imposed of penalty of Rs. 4,43,848/- and gave an option to deposit 25% of the penalty. He appropriated Rs. 4,43,848/- towards duty and penalty of Rs. 1,10,962/- already deposited by the appellants and observed that the issue of chit in respect of coloured tobacco for sending the same on the roof for drying was on afterthought. 7. On appeal, Commissioner (Appeals) decided the issue involved in the case vide common Order-in-Appeal and upheld the Order-in-Original. 8. After hearing both sides and after going through the impugned order, I find that the entire case of the Revenu....

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.... duty on 630 kgs of coloured tobacco when it is converted into branded chewing tobacco and cleared for home consumption. Thus they have to pay duty twice on the same goods. Since the shortage was not real therefore, they are entitled to refund of Rs. 4,43,848/- and Rs. 1,10,962/- collected from them without the authority of law. 12. Apart from the shortages, I find that there is virtually no evidence on record to show the clandestine activities of the appellants. Apart from the decision relied upon by the ld. Consultant, I find that the Hon'ble Allahabad High Court in the case of Minakshi Castings reported at 2011 (274) ELT 180 (Allahabad), has held that such shortages cannot lead to inevitable conclusion of clandestine manufacture and r....