TaxTMI 
TaxTMI 
2018 (12) TMI 1101
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....s engaged in the manufacture of Medicaments, Toilet Preparations, Beauty Preparations, Shaving Preparations, Soaps and Oil Base etc., under the brand name of 'BIOTIQUE'. They were duly registered with the Central Excise Department and were clearing their goods on payment of duty. The brand name BIOTIQUE belongs to M/s IRL Marketing Pvt. Ltd. to whom royalty was being paid by the appellant. 3. Apart from having their factory at Noida, the appellants were also having other group companies under the name of M/s Bio Veda Company Private Ltd., which was operating from Guwahati. Identical goods were being manufactured at their Guwahati factory under the same brand name, which was availing the Area Based Exemption Notification. The Guwahati factory closed in October, 2003 and subsequently the appellant started another factory under the name of Bio Veda Action Research Pvt. Ltd. at Paonta Sahib, Himachal Pradesh, which was also engaged in the manufacture of same goods under the same brand name. The said factory in Himachal Pradesh was also availing Area Based Exemption Notifications. 4. The goods manufactured in all the three factories were being cleared by them to a common godown situat....
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.... appearing on behalf of the appellant and Shri Mohd Altaf, Assistant Commissioner, learned AR appearing on behalf of the Revenue. 9. After considering the submissions made by both the sides, and after going through the impugned order, we find that the demand of Rs. 37,44,106/- stands confirmed against the appellant on the allegations of clandestine removal of the goods, which in turn are based upon recovery of the alleged incriminating documents either from the appellant's factory or from the common godown located at Greater Kailash or their Head Office, read with the statements recorded during investigations. It is seen that during the adjudication process, appellant made a request for cross examinations of various deponents of the statements, which request was accepted by the Adjudicating Authority. Some of the deponents appeared and were cross examined whereas the others did not cause any appearance and as such could not be cross examined. The appellants have made a prayer for not taking the said statements into account, which prayer stands rejected by the Adjudicating Authority. 10. However, we find that for confirming the demand on the allegations of clandestine activities, ....
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....r packing detailed in the Bulk Issue Detail Register were subsequently entered in another register i.e., Material Issued Register and as such both the two registers overlapped. 12. Similarly in respect of Outward Register, lose papers, Inward Register etc., the appellants have strongly assailed the demand on the ground that all these registers are private registers maintained for movement of the goods in their three factories. It is on record that packing material for all the three group companies were being received in Noida factory and thereafter supplied to each company as per their requirement. The Adjudicating Authority has not taken the said fact into consideration. Similarly demands raised on the basis of Bin-Card Register and Direct Marketing Register found from Delhi godown are not sustainable as the said godown received the goods manufactured in all the three factories and any mis-matching in the register maintained at Delhi godown cannot be solely attributed to their Noida factory. Similarly parallel invoices found in Delhi godown cannot be attributed to the unaccounted clearances from the appellant's Noida factory. The Adjudicating Authority has confirmed demands on t....
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....d to their Delhi godown. In the absence of any evidence to the contrary, it is beyond appreciation that the Revenue has sought to attribute the documents recovered from the godown to the appellant's Noida factory's clandestine production. Apart from the said documents as detailed above, Revenue has made no further efforts to find out the source of the procurement of raw material, the actual production in the appellant's factory or transportation of the same or the identity of the buyers and the cash receipt of the consideration for the goods in question. In the absence of these evidences, it is not justifiable to uphold the clandestine removal charges. 14. At this stage we may refer to certain decisions of the Tribunal, though it is not possible to refer to all of them as there are plethora of such decisions laying down that clandestine removal activities have to be upheld by production of positive evidence. Reference can be made to Tribunal's decisions in the case of Sakeen Alloys Pvt. Ltd. vs. Commissioner of Central Excise, Ahmedabad reported at 2013 (296) E.L.T. 392 (Tri.-Ahmd.), Commissioner of Central Excise vs. Saakkeen Alloys Pvt. Ltd. reported at 2014 (308) E.L.T. 655 (Gu....
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....of the said soaps the same includes using fans and air conditioner for drying soap cakes and packing machines operated by power for inner packing of the soap cakes as also electric heater for boiling the sugar used in the soaps. He has also referred to the statement of Shri Ambrish Saxena, Manager of the appellant wherein he has accepted the above manufacturing process. The appellant had nowhere reflected upon the correct process, neither have produced or detailed any alternative process of manufacture, which according to them is the correct process. Their only contention is that the Panchas as also Shri Ambrish Saxena has not being cross examined and as such their statements have to be kept out of consideration. 17. We find that there is a clear cut finding by the Adjudicating Authority as regards use of power at different manufacturing stages. The appellant have not strongly rebutted the same and has not also detailed the process of manufacture adopted by them for the manufacture of the said type of soaps. In their written submissions they have simplicitor submitted that the fans were being used for the benefit of labourers/workers as required under the Factories Act, 1948. Howe....