TaxTMI 
TaxTMI 
2018 (12) TMI 1237
X X X X Extracts X X X X
X X X X Extracts X X X X
....not seized, nor available for confiscation, fine was imposed of Rs. 2.5 crores. Further penalty under Rule 26 have been imposed on the other appellants. 2. The brief facts are that the appellant Shree Raj Pan Masala Private Ltd, is engaged in the manufacture of pan masala containing tobacco, that is gutkha, and their factory is at Banar (Jodhpur) in Rajasthan. The appellant manufactures under the brand name "Goa 1000" Gutkha being brand name belonging to another by paying one per cent royalty. There are other manufacturers also who use the said brand name of "Goa 1000" namely M/s. Royal Marwar near Ahmedabad, M/s. Yogesh Associates, Silvassa, and few others in Delhi and other places. 3. The officers of the DGCEI on some intelligence that the appellant, Shree Raj and other Group of Companies are involved in clandestine removal of the goods, searched the office premises of Raj Group of Companies located at 101/A, Devi Darshan Complex, Tembhi Naka, Thane West, Maharashtra. Simultaneous search was also conducted at the factory premises at Jodhpur. Search was also conducted at premises of the transporter at Bhiwandi. The group companies namely Sunrise Food Products Private Limited loc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tements were recorded by use of pressure tactics and undue influence by the officers, giving little credence to the validity of statements as evidence. The witnesses namely Mr Abdul Rahman Patniy, Suresh B Jajra, Suresh B. Jain, Ashok Jain, Praful Shah, Nayab R Siidique, and Abdul A Patni deposed before the Adjudicating Authority that the statements recorded earlier were neither true nor correct and were obtained under pressure. Mr AR Patniy of GMTS and Mr. A.A Patniy of GM carriers contradicted the contents in the notebook and the statement of Mr. J.G. Shaikh on the basis of which huge demand of duty was proposed. The cross-examination of main witness Mr. J.G Shaikh could not be conducted as he was not produced by revenue for cross examination. 6. That the allegation against the appellant Raj Pan Masala was based on the documents resumed from the premises of transporter. Appellant also requested for inspection of those documents and permission to take copies of these documents after inspection. Inspection of the documents was granted by the Adjudicating Authority and the investigating agency was directed to give inspection and to take out copies. In spite of repeated visits and w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cating Authority without acceding to the request of cross-examination and providing of relied upon documents and furnishing the memo of cross -examination passed the impugned order-in-original (No.JOD-EXCUS-000- COM-0013-17-18 dated 23.08.2017 and issued on 25.08.2017) confirming entire central excise duty demand totaling to Rs. 8,17,63,074/- along with interest and consequent penalties etc. and confiscating the goods allegedly cleared without payment of duty and imposing redemption fine (A copy of the said order is hereto annexed and marked as Exhibit-A). 10. On going through the impugned order passed by the ld. Commissioner, it was noticed that in para-5.7.8 of the order, 3 letters of the DGCEI dated 31.12.2012, 22.04.2015 & 4.7.2017 have been referred and relied to hold that appellants were given inspection of all the documents relating to the case, and an inference is drawn on the basis of these letters, ignoring the letters and submissions of the appellant and without providing copies of these 3 letters, in gross violation of principles of natural justice. 11. No evidence of clandestine manufacture and or removal of gutkha from the appellant's factory at Jodhpur has been add....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in the notice have not stated that the consignments of Gutka in question in respect of which the demand is raised were received by them, least from the Appellant's factory. 15. The alleged clandestinely removed Gutkha, according to the allegations in the Notice were originally transported by one M/s. KGN Transporter at Jodhpur, who was neither summoned, nor searched nor any statement recorded. No investigation whatsoever was conducted or even attempted with the said transporter a Jodhpur. 16. Accordingly to the allegations, the clandestinely manufactured Gutkha were first transported from Jodhpur to Ahmedabad and then trans-shipped through another truck from Ahmedabad to Bhiwandi, but no investigation whatsoever was conducted with the persons involved in the first leg of the transportation, linking it to Appellants factory at Jodhpur. No investigation with any other manufacturer of „Goa 1000 Gutkha‟ at Ahmedabad or nearby was conducted. 17. The concerned persons responsible for dispatch of Gutkha from the Appellant‟s factory at Jodhpur were never questioned in the entire investigation nor even confronted with the entries in the note book (recovered from G.M. Ca....
X X X X Extracts X X X X
X X X X Extracts X X X X
....all these consignments at Jodhpur were done M/s. GMTS, whereas the partner of M/s. GMTS has stated that they did not have any office in Jodhpur and that the booking at Jodhpur was done by M/s. KGN Transport. 21. Many of the statements of witnesses, which were relied on in the show cause notice were either retracted on the ground that these were obtained forcefully by physical abuse or were disowned as involuntary during cross-examination of these witnesses. 22. Accordingly, the ld. Counsel prays for allowing the appeal and setting aside the impugned order. 23. The counsel appearing for the other appellants have adopted the arguments of Shri S.P. Mathew appearing for Shree Raj Pan Masala and they further submitted that they have not played any role in aiding or abetting in the removal of any goods clandestinely nor have they handled any excisable goods nor done anything to be of clandestine in nature. Further, there have been no confiscation of any goods and penalty under Rule 26 is not exigible. 24. In reply, the ld. AR for Revenue states that in the statements recorded at the time of search of Shri Arun N. Joshi, Chairman of Raj Group of Companies, he stated was handling the m....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., which contained the details of transportation of goods with or without bills. Reliance was placed on the statement of Shri J.G. Shaikh, employee of M/s. G.M. Carriers. The said G.M. Carriers and GMTS both are transport companies, operating from the same premises at Bhiwandi. Further, there is no violation of principles of natural justice. The demand of duty has been confirmed on the basis of cogent evidence. As such, the appeals are fit to be dismissed. 27. Having considered the rival contentions and perusal of records, we record our findings on the evidences of the revenue relied upon as follows:- 27.1 Notebook resumed from premises of G.M. Carriers (GMC). The entries in the notebook were made by J.G. Shaikh, an employee of G.M. Carriers, as claimed by him. He had deposed that these contain the details of goods received from Shree Raj Pan Masala, Jodhpur, both accounted and unaccounted. The said note book was denied to have been maintained by G.M. Carriers by Mr. A.A. Patni of GMC, who also contradicted the statement of J.G. Shaikh, their employee. The said J.G. Shaikh was not produced and examined in the adjudication proceedings. Thus, his evidence being hit by Section 9 D of....