TaxTMI 
TaxTMI 
2019 (4) TMI 648
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....me & Address of the Manufacturer Total No. Of Cigarettes Length of Cigarettes Value (in Rs.) (MRP) 1 Royal Black Clove M/s Rudra Ventures Pvt. Limited, Village - Seerah, Rohan Road, Ludhiana (Punjab) 4,60,000 84 mm 23,00,000/- 2. Good Times Special Filter M/s Neghaia Enterprises Pvt. Ltd, Birpind 3,000 69 mm 6,000/- 3. Good Times Premium Filter M/s Inayat Global Private Ltd. Nakodar 25,000 69 mm 60,000/- 4. Hitler Black Filter M/s Karsh Enterprises, Nakodar 4,08,000 69 mm 6,79,200/- 5. Paris Special Filter Not Ascertainable 5,32,000 84 mm 10,64,000/- Total 14,28,009 44,09,200/- 2. Statement of Shri Ajay Adwani was recorded on 16.01.2013 wherein he, inter-alia, stated that the cigarettes were all non-duty paid and had been purchased from one Shri Samaylal of Raipur. Indian currency worth Rs. 19 lakhs was also seized as being related to sale proceeds of clandestinely cleared cigarettes. 3. This statement was, however, retracted by Shri Adwani immediately, vide affidavit dated 22.01.2013. 4. In follow up action, the residential premises of ....
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....t penalty of Rs. 10,94,004/- on M/s Rudra Ventures Pvt. Ltd iii) Imposed a penalty of Rs. 5lakhs on Shri Hitesh Tangri, Director of M/s Rudra Ventures Pvt. Ltd. iv) Confiscated the 4.6 Lakhs Cigarettes pieces of Royal Black Clove relating to M/s Rudra Ventures Pvt. Ltd seized from the premises of M/s Shradha Traders and allowed their redemption on payment of fine of Rs. 18 Lakhs. v) Confiscated the Indian currency of Rs. 19 Lakhs seized from the premises of M/s Shraddha Traders. vi) Imposed penalty of Rs. 5 Lakhs on Shri Ajay Adwani, Prop. Of M/s Shraddha Traders. vii) Confiscated the Indian currency of Rs. 2.25 Crores seized from the residential premises of the appellant viii) Imposed a penalty of Rs. 50 Lakhs on the appellant. 3. The Ld. Counsel on behalf of the Shri Samay Lal Jhangel submits that the cigarettes seized in the premises of M/s Shraddha Traders of Shri Ajay Adwani belongs to M/s Rudra Ventures Pvt. Ltd from whom the demand has also been confirmed in the impugned order, but, the order of demanding duty from M/s Rudra Ventures Pvt. Ltd. has been set-aside by this Tribunal reported in 2016 (344) ELT 472 (Tri.-Chan.). Therefore, the demand on accoun....
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....nd cogent reasons. The currency was not prohibited the goods. He also submits that the provisions of Section 121 of Customs Act has been made applicable to Central Excise vide Notification No. 68/1963-CE as amended issued under Section 12 of Central Excise Act, has been invoked and Indian currency ordered confiscation. It is emphasized that provisions of Section 111, 113 and 125 of Customs Act (relating to confiscation) has not been made applicable to Central Excise vide ibid Notification No. 68/1963-CE. The mechanism/machinery provision for confiscation has been provided under Rule 25 of Central Excise Rules, 2002. There is no provision under Central Excise Act and Rules made thereunder, envisages absolute confiscation of excisable goods. Since the excisable goods are not prohibited goods, cannot be ordered absolute confiscation, accordingly, the proceeds thereof cannot be ordered absolute confiscation and impugned order to this effect is bad in law. The provisions of Rule 25 of the Rules applies to any producer, manufacturer, registered person, or importer who issues an invoice or registered dealer. The appellant was not producer, manufacturer, importer or registered dealer, acco....
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....urer of these cigarettes. Unless and until it is identified who is the manufacturer of clandestine cleared the goods, the allegation that the cash recovered from the appellants is sale proceeds of clandestine removed cigarettes is not sustainable. Moreover, the duty was demanded from M/s Rudra Ventures Pvt. Ltd has already been set-aside by this Tribunal observing as under:- "6. In this case, I find that the charge of clandestine removal has alleged against the appellant on the premises that the cigarettes in the brand name of the appellant were recovered from one M/s. Shardha Traders but Sh. Ajay Adwani proprietor of Sharddha Traders never named the appellant that they have procured the said goods from the appellant. The statement of Sh. Samay Lal Janghel railway booking agent also did not disclose the name of the appellant. The only statement of M/s. Pankaj Logistics is disclosing the fact that they were transporting the cigarettes manufactured by the IGM Group of companies from Delhi to Raipur but did not disclose the name of the appellant. The only reason to implicate the appellant in this case is the statement of Sh. Ravi Singhal and it has been presumed by Revenue that the....
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....s is a by-product of sugar industry, molasses cannot be produced without producing sugar. In the instant case, there has been no allegation of clandestine production and removal of sugar from the assessee's factory. Therefore, without alleging clandestine production and removal of sugar there cannot be any allegation relating to clandestine production and removal of molasses. In other words, the department's case has no legs to stand on its own. Consequently, the department's allegation has no corroborative evidence to support its case. Since molasses is a controlled item, both under the Central Excise law and also under the State Excise laws, there cannot be any clandestine production and removal without the same being noticed by the State excise authorities. As rightly contended by the assessee, no case has been made against them by the State excise authorities who issued transport permits for the assessee to remove molasses to their distillery. The least that the department could have done in this case is to cross check with the State excise authorities and the records maintained by them to satisfy, whether, indeed, there has been production and clearance of the molasses to the ....
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....onjunctures and surmises as has been held in the case of Leather Chemicals and Industries Ltd. v. Commissioner of Central Excise (supra). One could cite several judgments on the subject matter to show that the department has to produce substantial and reliable evidence to prove the case of clandestine production and removal which the department has failed miserably in this case. 7. In the light of the above discussions, we are of the view that the department has failed miserably in proving the case of clandestine production and removal. Accordingly, we set aside the impugned order dated 9-4-2011 passed by the learned Commissioner of Customs and Central Excise, Aurangabad and allow the appeals filed by the parties. In view of the above discussion, I set aside the impugned order and allow the appeal with consequential relief, if any." As it is a fact on record that Revenue has failed to establish that who is the manufacturer of clandestine cleared the goods and no duty is sustainable on account of clandestine cleared goods as per the order of this Tribunal as discussed above and it is a fact on record that the appellant are not the manufacturer and are only trader, the....