TaxTMI 
TaxTMI 
2019 (11) TMI 305
X X X X Extracts X X X X
X X X X Extracts X X X X
....s. 85,008/-. Further, the officers also seized Indian Currency amounting to Rs. 4,38,80,530/- from the residence-cum-factory premises of Shri Sanjiv Mishra, Proprietor of the appellant. Simultaneously, various offices of transporters were also searched. 'Shyam Bahar' Gutkha was also seized at various premises of M/s Sitapur Kanpur Transport Company. Besides these, officers also searched various premises including premises of suppliers of raw materials. Further, investigations were carried out by recording of submissions and recovery of GRs from the premises of the transporters wherein the description of the goods stated on GRs were Zarda, Masala and Shyam Bahar. Some samples were also drawn and sent for testing to Shri Ram Institute for Industrial Research, Delhi (SIIR). On test, the average content of laminated plastic packing in each 2 gm Gutkha pouch was found to contain 2.1 to 2.2 % by weight of tobacco. On the basis of said test report and consumption of tobacco and as a result of various statements and documentary evidences collected from the transporters such as GRs and also on the basis of waste generated during the processing of Supari, appellants were issued with a show c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ale without payment of duty, that the cash seized in fact belonged to M/s Shyam Vanaspati Oils Ltd. A company promoted by Shri Sanjiv Mishra a few days before the date of search of the residential premises and the said money had been raised by M/s Shaym Vanaspati Oils Ltd. from the investors as certified by their Chartered Accountant Shri V.K. Tulsian that the name of appellant did not figure anywhere in the challans or GRs issued by transport companies or in the records maintained by them that duty demand based on such documents recovered from third party is without basis, that GRs and Challans issued by transport companies mentioned the goods as Zarda, Masala and Shyam Bahar and it cannot be presumed that the goods described as Shyam Bahar was Shyam Bahar Gutkha because the brand name Shyam Bahar was also being used by M/s Spatial Commercial Ltd., M/s Satish Trading and M/s SS Trading, as is clear from the copy of Civil Suit No.28/03 filed by them against the appellant before District Judge, Kanpur in November, 2003, that request of the appellant vide their letter dated 05.02.2006 for cross examination of 25 persons which included the proprietors, partners and employees of transp....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... has been estimated on the basis of the quantity of waste found in the premises of M/s. DG. Similarly, the cross examination of the Chemical Examiner of SIIR, who tested the samples of Shyam Bahar gutka for ascertaining its tobacco content is necessary for ascertaining as to by which method the test had been conducted. The report of the Chemical Examiner of SIIR is important as - (a) While SIIR has reported the tobacco content of Shyam Bahar Gutka as 2.1% to 2.2%, by weight, as per the formula intimated by M/s. ST to the Department, the tobacco content of the gutka is supposed to be about 13% to 16% by weight and if the SIIR report is correct, it would be a clinching evidence of a clever modus operandi for under-reporting the production of Gutka by showing inflated figure of consumption of tobacco; and (b) the exact figure of consumption of tobacco for the entire period of dispute i.e. 2000-2001, 2001-2002, 2002-2003 and 1-4-2003 to 16-10-2003 period of 2003-04 are available and if the SIIR report about tobacco content of Shyam Bahar Gutka being 2.1% to 2.2% by weight is correct, this report coupled with the consumption of PP Outers and Supari, would be a conclusive evidence o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the question of sustainability of the duty demand from M/s. ST in respect of consignments of Shyam Bahar Gutka alleged to have been booked through M/s. SKTC, M/s. HTGC and M/s. NTFC. Therefore, the order of confiscation of currency, confiscation of 85008 pouches of gutka for non- accountal and penalty on M/s. ST on this count and imposition of penalty on M/s. SKTC under Rule 26 of Central Excise Rules has also to be set aside and these matters have also to be remanded for de novo adjudication. Since at the time of seizure of the currency of Rs. 4,38,80,530/- Shri Sanjiv Mishra could not give any explanation for the same and his subsequent explanation, based on the certificate of their Chartered Accountant, Shri V.K. Tulsian that this currency is the share application money received for his new venture, M/s. SVOL, from some investors - three main investors being M/s. Sunshine Capital Ltd., M/s. Betsy Growth Finance and M/s. Stellar Investment, has been found to be false, in case the duty demand of Rs. 7,17,16,580/- is upheld against M/s. ST, the currency of Rs. 4,38,80,530/- would have to be treated as sale proceeds of goods cleared without payments of duty and would be liable for c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ating authority for allowing the respondent to cross-examine the witnesses. From a perusal of the impugned judgment, we find that such a requirement of law being imperative as was held by this Court in a judgment reported in 2010 (260) E.L.T. 514 (All.), CCE, Meerut-I v. Parmarth Iron Pvt. Ltd. was appreciated and applied by the Tribunal in the facts and circumstances of the present case. 3. Learned counsel for the appellant does not dispute the position that the law laid down by this Court in the judgment mentioned above remains unsettled and the opportunity of cross-examining witnesses is available to the assessee. 4. In support of the contention based on the judgment referred to above, learned counsel for the respondent has further placed before us a judgment rendered by Hon'ble Apex Court in the case of Andaman Timber Industries v. Commissioner of Central Excise, Kolkata-II reported in 2015 (324) E.L.T. 641 (S.C). 5. Referring to para 6 of the Apex Court judgment, it is submitted that the law laid down by this Court in the judgment already referred to hereinabove stands further fortified under the Apex Court judgment. 6. Learned counsel for the appellant is unable to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....k and its testing through CRCL, if the goods are available. 6.2 In order to comply with the above directions, all the six appellants mentioned above were given fresh opportunity to present their case before the adjudicating authority. In the regard, letter dated 22.11.2016 issued to all six appellant was send to them separately asking them to attend the hearing before the adjudicating authority on 08.10.2016, but none of the noticee appeared for hearing. All these letters were sent by speed post but returned by the postal authorities with different remarks. It appears that the appellants are not inclined to co-operate in the denovo adjudication proceedings. I also notice from the perusal of the case records that after passing of the Final Order by the Hon'ble Tribunal way back in 2011, they never approached the adjudicating authority with any request for cross-examination or for any request/clarification thought the terms of remand were notified to them also under the said Final order and they were also required to comply with the directions therein being appellant in the matter before the Hon'ble Tribunal. Although such absence from the proceedings is detrimental to their own in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Examiner of SIIR. The entire demand is based upon the statements of various proprietors of raw material suppliers, partner and employee of Transport Company and of Shri Dharmendra Shukla supplier of Betel Nut to the appellant. The learned Commissioner has fixed only one date for personal hearing and came to the conclusion that the appellant is not co-operating in the adjudication proceedings. Such a conclusion defies the order of the Hon'ble Tribunal and Hon'ble High Court; and is against the principles of natural justice. The order of the learned Commissioner is against the specific direction and hence liable to be set aside alone on this ground. b) The Appellate Tribunal in its order dated 12.08.2011 has clearly stated that if the cross-examination of the witnesses is not possible in terms of provision of Section 9D (1) read with Section 9D(2) the same cannot be admitted as evidence. No evidence whatsoever has been brought on record to prove that notices or summons were issued to such persons for their cross-examination. The Hon'ble Allahabad High Court vide order dated 21.01.2016 by relying upon Apex Court judgment in the case of M/s Andaman Timber Industries Vs Commissioner o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e request should have come from the appellant's side for their cross-examination. The learned Commissioner has totally disobeyed the remand proceedings and, therefore, the order of the learned Commissioner confirming the demand of duty and penalty is bad in law and hence liable to be set aside. e) The charges of clandestine removal are based on third party documents and based on the oral statements who were not cross-examined, therefore, the said third party documents and statements cannot be relied upon to prove the charges of clandestine removal. It is a well settled principle of law that the third party documents cannot be relied upon to prove the charges of clandestine removal in view of the following judgments:- (i) Kuber Tobacco Products Pvt. Ltd. Vs C.C. Ex. Reported at 2013 (290) ELT 545 (Trib). (ii) Rhino Rubbers Ltd. Vs Collector reported at 1996 (85) ELT 260 (Trib) (iii) CCEx Vs Rajratan Synthetics Ltd. reported at 2013 297 ELT 63 (Trib) (iv) Savitri Concast Ltd. Vs CCEx reported at 2015 (329) ELT 213 (Trib) f) The learned Commissioner has also failed to appreciate that the Order-in-Original passed by the then Commissioner dated 15.02.2007 was based on i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l shall be proved by putting evidence as regard to the receipt and consumption of raw material, movement of goods along with freight payment, unauthorized payment were procurement of raw material and packing material, misappropriate consumption of power and labour force etc. In the present case all these evidences are totally missing and the charges of clandestine removal are based on un-authentic GR's and oral statements. i) The Appellate Tribunal has specifically directed that if the charges of clandestine removal are proved against the appellant then the amount of cash currency amounting to Rs. 4,38,80,530/- should have been appropriated against the said demand. The learned Commissioner without allowing the request of the cross examination and based on the earlier finding of the then Commissioner has concluded that the appellant has clandestinely removed the goods from their factory premises and confirmed the demand of duty and amounting of Rs. 7,17,16,580/- along with equivalent penalty against the appellant. The charges of clandestine removal has not proved against the appellant and the learned Commissioner has totally ignored the specific direction made by the Appellate Tri....
X X X X Extracts X X X X
X X X X Extracts X X X X
....currency which is a violation of Hon'ble Tribunal's order dated 12.08.2011. Hence, the order of the Commissioner suffers from illegality. k) The Shyam Bahar Gutkha seized at the factory premises of the appellant has not attained the RG-1 stage as same was not packed in poly pouches and subsequently in boras. The said pouches were lying in semi finished condition and not liable for confiscation. Similarly the Shyam Bahar Gutkha seized at the transport premises were not cleared from the appellant factory premises and appears to be booked by different buyers who have purchased the said Gutkha from the open market. The Shyam Bahar Gutkha seized at the transport premises were not cleared from the appellant's premises without payment of duty and hence not liable for confiscation. The order of the learned Commissioner upholding the demand of duty alongwith interest and penalty is unsustainable, unlawful and liable to be set aside. Similarly the seizure of the seized currency as sale proceeds of clandestine removed goods is not maintainable in absence of any evidence of clandestine removal. The seizure of the currency and goods not maintainable in law and hence order of the learned Comm....