RAFIQ BROTHERS Vs. COMMISSIONER OF CENTRAL EXCISE, HYDERABAD

JUDGEMENT

(1.) THESE six appeals are taken up for decision by this common order since the appeals arise from the same Order -in -Original No. 89/97, dated 3 -12 -97 in Appeal Nos. E/751 -754/98 and E/354/99. Appeal No. E/1139/99 is filed by the Revenue against the very said order.

(2.) PURSUANT to an information, a lorry bearing no. KA04 -1189 carrying 450 cartons of Manikchand Pan Masala (hereinafter referred to as excisable goods) was intercepted on the afternoon of 6 -1 -95, by the Hyderabad Central Excise officers on the highway of Kallur while the said lorry was on its way to Bangalore from Hyderabad. The driver failed to produce any documents evidencing payment of duty on the excisable goods being carried in the lorry. However, he produced Memo No. 807/8 -1 -95 (two copies) of Prestige Roadlines, Bangalore; Prestige Roadlines consignment Note No. 023559, dated 5 -1 -95; Bill No. 655/5 -1 -95 of M/s. Rafiq Brothers (appellants in Appeal No. E/751/98), Hyderabad (two copies) and a duplicate copy of way bill No. 1437903, dated 5 -1 -95. Md. Kudrathulla (appellant in Appeal No. E/354/99) is the owner -cum -driver of the said lorry, hired by M/s. Prestige Roadlines, Hyderabad. Along with the transporters representative i.e., of M/s. Prestige Roadlines and one P. Kumar who identified himself as a machine operator in the factory of M/s. Dhariwal Tobacco Products Pvt. Ltd., Hyderabad (hereinafter referred to as DTPPL), the goods were examined. The cartons were found to be containing serial nos. marked with red sketch pen and the inscription Manikchand Pan Masala in print both in English and Hindi. The serial nos. on some cartons were repeated and since the driver and the representative of the transporter and the alleged P. Kumar could not produce documents evidencing payment of Central Excise Duty and due to reasons of repetition of serial nos., the goods were seized by the Preventive staff along with the vehicle which was found to be used for transporting the said 450 cartons of excisable goods on which Central Excise Duty had not been discharged.

(3.) THE driver -cum -owner of the lorry in his statement admitted that a local driver whose name was not known had loaded the said goods and handed over the loaded vehicle to him at the office of Bangalore transport, opposite Mir Alam Tank, N.H. 7, Hyderabad and it was not known to him and at from which place the goods were actually loaded into the vehicle. Another person who was not known to him came along with two other persons to the Brokers office and handed over the documents to him. He is also said to have stated that one Mr. P. Kumar, Machine Operator of DTPPL was accompanying the goods in the lorry. The said P. Kumar in his statement is said to have admitted to the officers that he was going on leave to his native place and on ascertaining from Shri Shaik Ahmed of M/s. Prestige Roadlines that a lorry is going up to Bangalore with goods from the godown of the factory, he came to the factory on 5 -1 -95 and boarded the loaded lorry. The local driver had taken the lorry to Bangalore lorry transport office and handed it over to the driver, Kudrathulla and the person who travelled from godown to the transport office in the lorry handed over the transport documents to him. M/s. Rafiq Brothers vide their letter to the Assistant Commissioner, claimed the ownership of the 450 cartons on 10 -1 -95 as they had sent the same consignment under way bill No. 655/5 -1 -95 to M/s. Arihant Enterprises, Coimbatore on the said lorry. One, Mohd. Ilyas, partner of M/s. Rafiq Brothers in his statement admitted that they have been purchasing the goods from DTPPL since October, 1994 and explained that some of the outer cartons of these 450 cartons consignment were found damaged when it was received by them and the same have been replaced with locally purchased cartons by their unskilled employee, one Shri Faiyaz and serial numbers were substituted, which could have resulted in a mistake. He produced the stock books of his business dealings with DTPPL which showed that there was a stock of 306 cartons on 5 -1 -95 and when questioned how 450 cartons could be dispatched on 5 -1 -95, he explained that the remaining cartons were borrowed from M/s. Balaji Agencies and 90 from M/s. Vishnu Agencies, appellants herein in Appeal No. E/753/98 and E/752/98, who were their dealers. Thus the full load of 450 cartons was made and loaded in the said lorry on 6 -1 -95.