TaxTMI 
TaxTMI 
2018 (6) TMI 308
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....red by manufacturer Durga Trading Co. and other co-noticees. 2. Brief facts of the case are that M/s.Durga trading co. (hereinafter referred to as DTC) were engaged in the manufacture of Gutkha having brand name Pukar. On 28.02.2007 officers of central entelligence conducted search operations at the office premises of M/s.Laxmi Agencies, Ghatkopar, Mumbai and at Laxmi chicken centre, Ghatkopar, Mumbai on the reasonable belief that they were dealing with Pukar brand gutkha manufactured by DTC. At Laxmi chicken centre, officers recovered a note book wherein certain payment details were mentioned for the period from July 2006 to December 2006. The said note book was seized by officer under panchnama on 28.2.2007. Further at Laxmi agencies 48000 pouches of Pukar gutkha valued at Rs. 48,000 were seized under panchnama on 28.2.2007. Further investigations were also carried out at Bandra terminus railway station where search of a vehicle resulted in seizure of 3 lakh 60 thousand pouches of Pukar gutkha. The person accompanying said vehicle was Shri Ramji Tiwari. On 28.2.2007 statement of Shri Ramji Tiwari was recorded. The officers also found another consignment of 30 bags of Pukar Gutkh....
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....as to why: (a) Central Exicse duty amounting to Rs. 4,90,19,731/- (Rs.Four Crores Ninety Lakhs Nineteen Thousand Seven Hundred and Thirty One only) [CENVAT duty Rs. 3,64,08,000/-, National Calamity Contingent Duty (NCCD) Rs. 72,81,600/-, Additional Duty of Excise (AED) Rs. 43,68,960/- and Education Cess Rs. 9,61,171/-], as detailed in Annexure A2 to this Notice, should not be demanded and recovered from them under the proviso to section 11 A(1) of the Central Excise Act, 1944 and as to why the amout of Rs. 1,25,00,000/- (Rupees One Crore and Twenty Five Lakhs only) paid by them during the investigations should not be appropriated against this duty liability; (b) Interest at the appropriate rates should not be demanded from them under Section 11AB of the Central Excise Act, 1944; (c) Penalty should not be imposed on them under Section 11AC of the Central Excise Act, 1944 read with Rule 25 of the Central Excise Rles, 2002 for the contraventions as discussed above; (d) The excisable goods viz Pukar Gutkha valued at Rs. 14,56,32,000/-, manufactured and cleared by them as detailed in Annexure A2 to this Notice, should not be confiscated under Rule 25 of the Central Excise Rules,....
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.... Shri Rajesh Shettiar recorded on 1.3.2007 did not prove anything against DTC. DTC also contended that the said show cause notice dated 30.9.2010 was based on assumption and presumption. They further argued that charge of clandestine removal should be supported by some positive evidence and such positive evidence was not present in the said show cause notice. They further contended that on 28.2.2007 during the search of DTC no incriminating documents were recovered and both raw materials and finished goods tallied with the record maintained in the factory. DTC also argued that M/s.Udai Traders as a trader can effect any sale that was their private domain and DTC has no concern with the transactions entered into by Uday Chand Chourasia of M/s.Udai Traders with anybody. They have also contended that nobody has stated to have purchased or received gutkha from DTC. The original authority did not appreciate the submissions made and confirmed the demand of Rs. 4,90,19731/-. The order passed by the original authority is reproduced below:- 1. I confirm the demand of duty amounting to Rs. 4,90,19,731/- (Four crores ninety lakhs nineteen thousands seven hundreds thirty one only) (CENVAT dut....
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....es fifty lakhs only) on Shri Jitendra Gandhi Proprietor, M/s Jayantilal & Co., Mumbai under Rule 26 of Central Excise Rules, 2002. 11.I impose a penalty of Rs. 50,00,000/- (Rupees fifty lakhs only) on Shri Rajesh Kumar Suri, Partner, M/s Ramjee Agencies, Lucknow under Rule 26 of Central Excise Rules, 2002. 12.I impose a penalty of Rs. 50,00,000/- (Rupees fifty lakhs only) on Shri Rakesh Chadda, Mumbai under Rule 26 of Central Excise Rules, 2002. Aggrieved by the said order, appellant is before this Tribunal. 4. Heard the ld.Counsel for DTC, the appellant. He has submitted that Pukar brand gutkha was manufactured by DTC and all the sale was at factory gate on payment of appropriate Central Excise Duty. Further the period covered by present show cause notice is period earlier than the period for which Pan Masala Packing Rules, 2008 were made applicable. During the period of dispute in present appeal i.e. May, 2006 to December, 2006, the duty was to be paid on clearance. He has submitted that the officers searched the factory premises of DTC on 28.02.2007 and they did not find any incriminatory documents at the factory premises and the finished goods and raw materials tallied ....