TaxTMI 
TaxTMI 
2025 (5) TMI 55
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....000 unlabelled biris. Accordingly, investigation was initiated against the appellant. On completion of the investigation a SCN dated 04.02.2010 was issued demanding central excise duty of Rs.24,07,445/-. The notice also proposed confiscation of the biris which were found to be not accounted. 2.1. On adjudication, the Ld. Additional Commissioner has passed the following order: (i) confiscated the excisable goods (Biris) seized valued at Rs. 1,24,065/- and in lieu of this confiscation, he ordered a redemption fine of Rs. 31,016/- under the provision of Rule 25 of the Central Excise Rules, 2002 and he appropriated the cash security amount against redemption fine under the provision of the said Rules; (ii) confirmed the total demand of Central Excise Duty to the tune of Rs. 24,07,445/-under section 11A(2) of the C E Act, 1944 read with rule 8 of the said Rules for the clandestine removal and non accounting of excisable goods; (iii) Ordered for payment of interest at the appropriate rate under section 11AB of the said Act read with rule 8 of the said Rules; (iv) imposed penalty of Rs. 24,07,445/- under section 11AC of the said Act read with rule 25....
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....tained. Wherever the Appellant decides to manufacture labelled biris from the unlabelled biris, the labeled biris would be manufactured and then the same are entered in RG 12A register. As per rule 25(1)(b) of the said Rules if any producer, manufacturer, registered person of a warehouse or a registered dealer does not account for any excisable goods produced or manufactured or stored by him then, all such goods shall be liable to confiscation. The unlabelled biris were not required to be entered in the register maintained under rule 10 of the said Rules and hence the appellant submits that the said goods are not liable to confiscation. (vi) In the statement dated 19.08.2009, Shri Krishnapada Biswas stated to have purchased 1,91,000 biris on 16.08.2009 from Md. Rabibul and Sri Palash Biswas s/o Sri Kali pada Biswas on 22.12.2009 stated to have purchased 6,10,000 biris (from whom not mentioned), due to ensuing RamZan and Durga Puja when the binders would not bind biri. In spite of the explanation, the adjudicating authority has confiscate the biris, both labelled and unlabelled. The Ld. adjudicating authority failed to see the "ACCOUNT OF BIRI AS FOUND IN THE DOCUMENTS RESU....
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....led, nor the submission made in the statement and reply to the notice that the Appellant has separate income from trading of stock business and pisciculture for which copy of the Trade Licence was submitted. While relying on the ITRs, the authority who issued the notice, did not care to see the computation of income enclosed with the above ITRs. (x) The three cash memos relied upon by the authority were given for sale of labelled biri out of the stock of duty paid biris. The Appellant used to clear the labelled biris under Central Excise invoices showing consignee as 'Self' and from the said duty paid biris they sell biris to different retailers. The cash memoes are given at the time of sales. The authority who issued the impugned notice and confirmed the demands did not charge any duty on the quantity of biris sold under the three cash memos which is evident from the annexure enclosed with the notice. (xi) The statements from Sri Krishnapada Biswas, prop. of the Appellant concern was recorded on 19.08.2009. In the said statement he stated, interalia, that he is purchasing kachha biris from Md. Rabibul for the last two years Md. Rabibul normally comes once in ever....
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....t relied on the decision of the CESTAT, WZB, Ahmedabad in the case of Rakesh G Agarwal Vs. Commissioner of Central Excise, Surat reported in 2011(264)E.L.T. 531, wherein it has been held that when the statements are retracted then it needs corroboration by independent evidence. (xiii) The Appellant relied on the decisions of the Hon'ble High Court, Calcutta in the case of Raj Kumar Damani Vs. Union of India reported in 2010(257) E.L.T. 371 and of the Hon'ble High Court, Ahmedabad in the case of Commissioner of Cus. & C.Ex., Surat-II Vs. Shivam Synthetics reported in 2010 (258) E.L.T. 30. (xiv) In view of the non availability of any mention of the name of the Appellant concern and without confirmation of the author of the said documents, the said documents of the third party are not reliable to allege supply of biris to the Appellant concern. In this regard, the Appellant relied on the decision of the CESTAT, SZB, Chennai in the case of Commissioner of Central Excise, Coimbatore Vs. Rajaguru Spinning Mills(P) Ltd. reported in 2009 (243) E.L.T. 280 (Tri.- Chennai). (xv) The statements of Sri Palash Biswas given on 12.11.2009 and 22.12.2009 have been relied ....
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....is were not seized from the factory. They were seized from the residence and the rooms adjacent to the factory. Further, we observe that there is no duty on unlabeled biris upto a clearance of 20 lakh sticks. The appellant has accounted the 1,67,000 unlabelled biris in the RG 12A account. Thus, we hold that the 1,67,000 unlabelled biris which were accounted for in RG 12A are not liable for seizure. We find that all the unlabelled biris found at the time of visit of the officers have been later labelled and cleared on payment of central excise duty. Similarly, the labelled biris found not entered in the register were also accounted and cleared on payment of duty. Accordingly, we hold that the demand of duty on the 1.67 lakhs unlabelled biris accounted in their books of account as well as the labelled biris accounted in the books and cleared on payment of duty cannot be confiscated and duty cannot be demanded again on the same goods. 6.2. As per Rule 10 of the Central Excise Rules, the appellant is required to maintain the records for manufacture of the dutiable goods. Under the rule 10 of the central excise rules, the record maintained by the appellant should contain the particul....
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.... of the said Rules. Under these circumstances, we hold that the said goods are not liable to confiscation and accordingly, we set aside the confiscation of unlabelled biris made in the impugned order. 6.5. It is also observed demand of central excise duty has been made mainly on the basis of the 9(nine) sale bills of tobacco, ITRs, three cash memos and the statements, diary and loose sheets recovered during the course of investigation. We take note of the appellant's submission in this regard that they have categorically denied to have purchased the said 160 kgs of tobacco from M/s. Jay Hind Tobacco Store. Even if it is assumed that the purchase was genuine, we observe that no attempt has been made to ascertain quantity of probable manufacture at the time of investigation or at the time of adjudication by the Ld. Additional Commissioner. We find that there is no evidence available on record to show that the appellant has manufacture labelled biris liable to duty by using those tobacco. The allegation in the impugned order is that the labelled biris manufactured by the appellant were subsequently cleared clandestinely without payment of duty. It is to be noted that clandestine re....
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.... circular. We have gone through the said circular which requires the manufacturer of Gutkha, Pan Masala, Tobacco etc. to give intimation about the number of machines installed in their factory and the working capacity of the same. There is nothing in the said circular laying down that the manufacturers are required to discharge the duty liabilities in accordance with the declaration made by them. In fact, any contravention of the procedure detailed in the circular invited penal action only, as mentioned therein. The charges against the appellant are that they have clandestinely manufactured and cleared the Gutkha without payment of duty inasmuch as the production shown by them is less than the production declared in the declaration. Such charges are required to be proved independent of average production declared by the appellant. Apart from the above reasons, there is virtually no other evidence on record to reflect upon the fact of clandestine manufacture and clearance of Gutkha. It does not require the support of any legal pronouncement to state that the charges of clandestine removal being quasi- criminal and serious charges are required to be proved by production of p....