Custom, Excise & Service Tax Tribunal
4. Whether Order Is To Be Circulated To ... vs Cce, Chandigarh I on 8 August, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SCO 147-148, Sector 17-C, CHANDIGARH COURT NO. I DATE OF HEARING : 08/08/2016. DATE OF DECISION : 08/08/2016. Excise Appeal Nos. 2287-2292 of 2008 [Arising out of the Order-in-Original No. 132/CE/CHD/2008 dated 05.06.2006/09.06.2008 passed by The Commissioner of Central Excise, Chandigarh.] For Approval and signature : Honble Shri Ashok Jindal, Member (Judicial) Honble Shri B. Ravichandran, Member (Technical) 1. Whether Press Reporters may be allowed to see : the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it would be released under Rule 27 of : the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair : copy of the order? 4. Whether order is to be circulated to the : Department Authorities? M/s Sada Shiv Steel Mills ] M/s Sada Shiv Castings Ltd. ] M/s Sada Shiv Ispat Ltd. ] Shri Sunny Garg ] Appellants Shri Kewal Garg ] M/s Raghav Enterprises ] (Prop. Suresh Agarwal) ] Versus CCE, Chandigarh I Respondent
Appearance Shri Sudhir Malhotra, Advocate for the appellants.
Shri V. Gupta, Authorized Representative (DR) for the Respondent.
CORAM: Honble Shri Ashok Jindal, Member (Judicial) Honble Shri B. Ravichandran, Member (Technical) Final Order No. 61166-61171/2016 Dated : 08/08/2016 Per. Ashok Jindal :-
These appeals have been directed against the impugned order which is as follows :-
SSCL i. I confirm the demand of Central Excise duty amounting to Rs. 77,52,160/- on account of clandestine removal during the period 01/4/2004 to 21/10/2005 and Rs. 4,42,243/- (Rs. Four Lakh forty two thousand two hundred and forty three only) on account of shortage of non-alloy ingots and cenvatable melting scrap by invoking extended period limitation under proviso to sub-Section 1 of Section 11A of the Act. The amount of Rs. 4,42,243/- (Rs. Four lakh forty two thousand two hundred forty three only) already paid by the noticee stands appropriated against the duty liability confirmed herein above.
ii. I also demand interest at appropriate rates on the Central Excise duty not paid by the noticee under the provisions of Section 11AB of the Act.
iii. I also imposed a penalty of Rs. 81,94,403/- (Rupees Eighty one lakh ninety four thousand four hundred and three only) on the noticee in terms of Section 11AC of the Act readwith Rule 25 of the Central Excise Rules, 2002.
2. SSSM i. I confirm the demand of Central Excise duty amounting to Rs. 2,77,488/- (Rs. Two lakh seventy seven thousand four hundred and eighty eight only) on account of shortage of Alloy Steel Ingots and Rs. 3,12,427/- (Rs. Three lakh twelve thousand four hundred and twenty seven only) on account of shortage of Non Alloy steel ingots as recomputed shortage detected on 21/10/2005 under proviso to sub-Section (1) of Section 11A of the Act and drop the demand of Rs. 7,57,105/- on account of under valuation being unsustainable in the eyes of law. Accordingly, an amount of Rs. 5,89,915/- out of Rs. 10,32,342/- already deposited by the noticee stands appropriated towards the Central Excise duty confirmed herewith. The balance amount may also be appropriated for payment of interest and/or penalty hereby imposed.
ii. I also demand interest at appropriate rates on the Central Excise duty not paid by the noticee under the provisions of Section 11AB of the Act.
iii. I also imposed a penalty of Rs. 5,89,915/- (Rupees Five lakh eighty nine thousand nine hundred and fifteen only) on the noticee in terms of Section 11AC of the Act readwith Rule 25 of the Central Excise Rules, 2002.
3. SSIL i. I confirm the demand of Central Excise duty amounting to Rs. 45,865/- (Rs. Forty five thousand eight hundred and sixty five only) on account of shortage of Alloy Steel Ingots and Central Excise duty amounting to Rs. 44,503/- (Rs. Forty four thousand five hundred and three only) on account tof shortage of Alloy Steel detected on 21/10/05 under proviso to sub-Section (1) of Section 11A of the Act.
ii. I confiscate excess stock of 1.915 MT of Non Alloy Steel Ingots valued at Rs. 36,691/-, 0.865 MT of Non Alloy Steel Flats valued at Rs. 18,598/- and 17.099 MT of Alloy Steel Flats valued at Rs. 15,44,296/- being the stock of goods found in excess of the recorded balances on 21/10/05. However I allow the same to be redeemed to the noticees on payment of redemption fine of Rs. 2,40,000/- (Rupees Two lakh forty thousand only). After the redemption, the noticees shall account for the said goods in their production records.
iii. I also demand interest at appropriate rates on the Central Excise duty not paid by the noticee under the provisions of Section 11AB of the Act.
iv. I also imposed a penalty of Rs. 90,368/- (Rupees Ninety thousand three hundred and sixty eight only) on the noticee in terms of Section 11AC of the Act readwith Rule 25 of the Central Excise Rules 2002.
4. SSSPL i. I confirm the demand of Central Excise duty amounting to Rs. 1,35,121/- (Rupees One lakh thirty five thousand one hundred and twenty one only) on account of shortage of GI Pipes valued at Rs. 8,27,950/- declared on 21/10/05 under first proviso to sub-Section (1) of Section 11A of the Act. I also confirm the demand of interest at appropriate rates on the Central Excise duty not paid by the noticee amounting to Rs. 19,030/- and mandatory penalty of Rs. 33,780/- in terms of Section 11AC of the Act, I appropriate the same against the said liabilities.
ii. Since, the noticee has already deposited the said amounts on account of duty, interest and penalty. I take a lenient view and do not impose any penalty under Rule 25 of the Central Excise Rules 2002.
5. RE i. I confiscate unaccounted stock of Alloy/Non Alloy Steel Flats weighing 77.400 MT valued at Rs. 18,57,600/- (Rupees Eighteen lakh fifty seven thousand and six hundred only). However, I allow the same to be redeemed to the noticees on payment of redemption fine of Rs. 7,40,000/- (Rupees Seven lakh forty thousand only).
ii. I also impose a penalty of Rs., 3,00,000/- (Rupees Three lakh only) under Rule 26 of the Central Excise Rules, 2002.
6. I also order confiscation of unaccounted cash of Rs. 47.00 lakh (Rupees Forty Seven lakh only) seized from the residence of Shri Sunny Garg on 21/10/05 under the provisions of Section 121 of the Customs Act, 1962, as made applicable to Central Excise matters vide Notification No. 68/63-CE dated 04/5/1963 issued under Section 12 of the Central Excise Act, 1944. Further, I also impose a penalty of Rs. 10,00,000/- (Rupees Ten lakh only) on Shri Sunny Garg in terms of Rule 26 of the Central Excise Rules, 2002 for clandestine manufacture and clearance of excisable goods cleared without payment of duty.
7. I impose a penalty of Rs. 10,00,000/- (Rupees Ten lakh only) on Shri Kewal Garg, Director in terms of Rule 26 of the Central Excise Rules, 2002 for clandestine manufacture and clearance of excisable goods cleared without payment of duty.
8. I impose exemplary penalty of Rs. 25,00,000/- (Rupees Twenty Five lakh only) on Shri Suresh Aggarwal, Proprietor of RE, in terms of Rule 26 of the Central Excise Rules, 2002 for facilitating clandestine manufacture by providing unaccounted melting scrap to the manufacturing units of noticees and clandestine clearance of excisable goods without payment of duty by marketing the same.
This order is being passed without prejudice to any other, or any further, action that may be taken against the noticees under the Central Excise Act, 1944 and Rules made there under and/or any other law for the time being in force.
2. The brief facts of the case are that the appellants namely M/s Sada Shiv Steel Mills (SSSM), M/s Sada Shiv Castings Ltd. (SSCL), M/s Sada Shiv Ispat Ltd. (SSIL) are the manufacturer of excisable goods and M/s Raghav Enterprises is a trading firm owned by Shri Suresh Agarwal. Shri Sunny Garg and Shri Kewal Garg are the Directors/Proprietor of manufacturing firm. The brief facts of the case are that on 21/10/05, the DGCI conducted a raid at the business/residential premises of all the appellants were engaged in manufacturing of alloy and non-alloy steel ingots flats, rounds, EPW pipes etc. It was alleged that there was a shortage of non-alloy steel ingots to the tune of 120.720 MT of non-alloy steel ingots and shortage of cenvatable scrap of 50,140 MT at the premises of SSCL. Shortage of raw material was found at the premises of SSSM shortages of raw material and finished goods were also found at the premises of SSIL the goods valued Rs. 18,57,600/- were seized at the premises of M/s Raghav Enterprises. Rs. 47,00,000/- were also recovered from the residential premises from the residence of Shri Sunny Garg and Shri Kewal Garg and thereafter some statements were recorded and on the basis of statement a case was booked by issuing of the show cause notice that M/s SSCL is engaged in clandestinely clearance the finished goods through M/s Raghav Enterprises, dealer therefore liable to pay duty to the tune of Rs. 77,52,160/-. The goods found short in the premises of manufacturing units were sought to demand duty on the ground that the said raw material is used in manufacturing of final dutiable product which has been cleared clandestinely and finished goods found short have been cleared clandestinely without payment of duty. In these set of facts, the show cause notice was issued to demand duty on account of clandestine clearance and shortage of raw material which has been used for manufacturing of dutiable goods and demand of duty of finished goods found short and to confiscate the amount of Rs. 47,00,000/- recovered during the course of investigation from the residential premises of Shri Sunny Garg and Shri Kewal Garg, interest was also sought to be demanded and penalties were proposed to be imposed. The show cause notice was adjudicated demand of duty was confirmed against M/s SSCL to the tune of Rs. 77,52,160/- on account of clandestine clearance of dutiable goods without payment of duty alongwith interest. A demand of Rs. 4,42,243/- was also confirmed against M/s SSCL on account of shortages of raw material and finished goods. Demand of Rs. 2,77,488/- and Rs. 3,12,427/- was also confirmed against M/s SSSM on account of shortage of raw material. A demand of Rs. 45,865/- and Rs. 44,503/- was confirmed against M/s SSIL alongwith interest and equivalent amount of penalty was also imposed on manufacturing units penalty on Shri Sunny Garg and Shri Kewal Garg of Rs. 10,00,000/- each were imposed under Rule 26 of Central Excise Rules, 2002. A penalty of Rs. 3,00,000/- was imposed on M/s Raghav Enterprises and penalty of Rs. 25,00,000/- was imposed on Shri Suresh Agarwal, Prop. of M/s Raghav Enterprises under Rule 26 of Central Excise Rules, 2002. The seized goods were allowed to be redeemed on payment of redemption fine of Rs. 7,40,000/-. The cash recovered from the premises of Shri Sunny Garg and Shri Kewal Garg of Rs. 47,00,000/- was absolutely confiscated. Aggrieved from the said order, appellants are in appeal before us.
3. The learned Counsel for the appellants submits that the verification of stock was done on the basis of average and not on actual he drawn our attention to Annexure B to the Panchnama it reveals that M/s SSCL was having stock of 302.340 MT at the time of visit of the staff on 21/10/05 the stock of scrap was allegedly physically verified as 252.200 MT as per waivement slip 127 but no waivement slip were prepared and supplied and the same has not been find and mentioned in Annexure to the show cause notice. He further submits that the trucks are enviable have the capacity of 10 MT and its not physically to waive 252.200 MT in 7 trucks during 1130 am to 8 pm in a single day through the shortage has been alleged arbitrarily. He further submits that the shortage of non-alloy steel ingots 120.720 MT has been worked out in Annexure B to the Panchnama shall revealed that no physical waivement was carried out and quantity of non-alloy ingots have been arrived by multiply by number of ingots of specific size with its average weight and ____ fees. The shortage alleged of non-alloy ingots is only 120 MT. If the re-inspection done ha sbeen considered then the shortage shall be reduced to 38,796 MT instead of 120 MT and there is no weight ascertained for the size 3=4 x 4=4and 44 x 54, therefore, actual waivement is not ascertainable and 38.796 MT is not a considerable quantity of shortage, therefore, on account of shortage no demand is sustainable.
4. With regard to the demand on account of shortage against SSSM he submits that demand of duty has been confirmed on account of shortage of raw material. In fact duty can be demanded only on manufactured goods. In the impugned order there is no allegation confirmed by the Adjudicating Authority the raw material, in question, has been manufactured by the appellants. Moreover, if it is taken that the said raw material has been used in manufacturing of final product in that case the value of finished goods have not been ascertained. Therefore, there is a lack in adjudication the duty cannot be demanded on raw material as the same is not manufactured goods. The only remedy was available with the Revenue was that to deny cenvat credit on raw material but that is not the case of the Revenue. Therefore, on shortage of raw material no demand is sustainable.
5. He further submits that the shortages in the case of SSIL on raw material is also not sustainable in the light of the submissions made by him in the case of SSSM. He further submits that duty cannot be demanded on the shortages of finished goods as waivement has been done on the basis of average which cannot be taken is correct as no actual waivement has been done, therefore, duty cannot be demanded.
6. He further submits that demand of Rs. 77,52,160/- has been confirmed on account of clandestine clearance to M/s Raghav Enterprises. For that he has made a categorical statement that M/s SSCL never made any sale of their goods to M/s Raghav Enterprises and no incriminating document were recovered from the appellant for substantiating clandestine removal of goods to M/s Raghav Enterprises. The allegation is made only on the basis of the statement of Shri Suresh Agarwal of M/s Raghav Enterprises that they are purchasing goods from Sada Shiv Group. In fact M/s SSIL was supplying goods to M/s Raghav Enterprises against invoices and the records recovered from M/s Raghav Enterprises corroborates the said statement. To allege clandestine removal from SSCL is only on the basis of documents recovered from third party. No other corroborative evidence has been produced by the Revenue for clandestine removal. Therefore, demand is not sustainable in the light of the decision of Raipur Forging Pvt. Ltd. vs. CCE, Raipur I reported in 2016 (335) E.L.T. 297 (Tri. Del.). He also submits that no corroborative evidence has been produced by the Revenue like purchase of extra raw material, actual removal of goods, transporter statement, receipt of sale proceeds, therefore, demand is not sustainable in the light of decision of Arya Fibres Pvt. Ltd. vs. CCE, Ahmedabad II reported in 2014 (311) E.L.T. 529 (Tri. Ahmd.). He further submitted that the Annexure D relied for Chart I, II, III reveals that there are revealed number of entries in respect of same physical taken for same day 2 times, 3 times or 4 times from Dehra Wasim, Punjab to Delhi which is not possible at all. Therefore, impugned order qua clandestine clearance to be set aside. Value to cash recovered from the residential premises of Shri Sunny Garg and Shri Kewal Garg nothing has been brought on record that seized currency having direct nexus of clandestine removal of goods by which firm therefore confiscation of seized currency is bad in law in the light of this Tribunal in the case of CCE, Chandigarh vs. Patran Pipes (P) Ltd. reported in 2010 (261) E.L.T. 1173 (Tri. Del.) which has been affirmed by Honble Punjab & Haryana High Court reported in 2013 (290) E.L.T. A88 (P&H). He further submitted that no statement of transporter has been recorded no allegation of flow back of funds and no statement of the appellant confirms clandestine clearance of goods to M/s Raghav Enterprises and there is not any incriminating document available on record during the course of search. He further submits that the Revenue has taken arbitrarily at the rate of 69.640 per MT to arrive duty liability for past clearances. As Revenue itself has calculated the value of seized goods of 77.4 MT of alloy/non-alloy steel flats at the rate of 20,000 per MT through valuation is also arbitrarily. He further submits that in the impugned order penalty has been imposed on M/s Raghav Enterprises as well as on its Prop. Shri Suresh Agarwal. Two penalties cannot be imposed on the firm and Prop. in the light of decision of this Tribunal in the case of Ashwani Kumar Jain vs. CCE, Meerut reported in 2011 (270) E.L.T. 245 (Tri. Del.) and Jayantibhai J. Patel vs. CCE, Ahmedabad reported in 2009 (244) E.L.T. 140 (Tri. Ahmd.), therefore, it is prayed that impugned order is to be set aside.
7. On the other hand learned AR reiterated on the impugned order and submit that on the basis of the investigation the case has been made out against the appellant and by the reasoned order the learned Commissioner has demanded the demand of duty.
8. Heard the parties considered the submissions in detail. On careful consideration of the submissions made by both the sides, we find that the demand of duty has been confirmed on the following grounds :-
Demand of shortage of inputs and finished goods :-
(a) On account of shortage of raw material/finished goods in the factory premises of all the three manufacturers ;
(b) On account of clandestine removal of goods by M/s SSCL ;
(c) Absolute confiscation of the currency of Rs. 47,00,000/- recovered from the residential premises of Shri Sunny Garg and Shri Kewal Garg and
(d) For imposition of penalty on all the appellants.
We have seen that during the course of investigation excess shortage of goods no incriminating document was found in the premises of manufacturer/appellants and no corroborative evidence has been produced except the some statements only.
9. On the basis of the records placed before us and arguments advanced by both the sides, we find that in the case of SSCL demand of duty has been confirmed on account of shortage of raw material and finished goods to the tune of Rs. 4,42,243/-. We find that duty has been demanded on shortage of melting scrap of 50.140 MT. We find that the duty has been demanded on shortage of raw material and in the impugned order it is not alleged that this raw material has been used in manufacturing of final product which has been cleared without payment of duty. The demand of duty on shortage of raw material is not sustainable as duty can be demanded only on manufactured goods admittedly raw material is not manufactured goods of the appellant. Therefore, the demand of duty on melting scrap on account of shortages is not sustainable.
10. We have seen that in the impugned order duty has been demanded on shortage of finished goods the sole contention of the appellant is that waivement has been done on the average basis not on actual. The learned Adjudicating Authority while adjudicating has adopted the method of average waivement by sending the team to inspect and find out the average weight of different sizes. If the average weight during the course of adjudication has been taken in that case also the shortage of 120 MT is reduced to 38.796 MT i.e. too when the average weight of dimensions 3=4 x 4=4and 44 x 54are not available, therefore, we hold that the waivement done on average basis to alleged shortage of finished goods is not sustainable in the absence of any corroborative evidence of clearance of finished goods without payment of duty. Admittedly no corroborative evidence has been produced by the Revenue in support of their claim, therefore, we hold that demand of shortage against SSCL is not sustainable.
11. We also take note that demand of duty has been confirmed against M/s SSSM on account of shortage of raw material. The contention of the appellant is that they were using cenvatable inputs as well as non-cenvatable inputs but in the impugned order the Adjudicating Authority has not given to credence to the fact that the appellant is using cenvatable as well as non-cenvatable inputs which inputs has been found short during the course of investigation. Moreover duty has been demanded on raw material which are not manufactured goods of the appellant and it has not been held by the Adjudicating Authority in the impugned order that the input found short has been used in manufacturing of final dutiable product. If that is the case in that case duty is to be demanded on the value of final manufactured goods alleged to be cleared without payment of duty. In the absence of such evidence, duty cannot be demanded on raw material found short in the premises of SSSM. Therefore, the demand of duty against M/s SSSM is not sustainable, the same is set aside.
12. With regard to demand of duty on account of shortage at the premises of SSIL we find that duty has been demanded on both inputs as well as finished goods. With regard to shortage of inputs it is not held by the Adjudicating Authority that the inputs found short has been used in manufacturing of final product by the appellant, if that would be the case duty would have been demanded on the value of final manufactured goods i.e. not the case of the Revenue. Therefore, the duty cannot be demanded on the raw material found short during the course of investigation as same is not manufactured goods by the appellant. We further find that while waivement of finished goods during the course of investigation it was found that as per statutory records the finished goods are of 110.207 MT whereas on average waivement it was found that 102.465 MT, therefore, the shortage attributed to 7.742 MT. The details of actual average waivement has not been provided, therefore, benefit of doubt goes in favour of the appellant as waivement has been done on average basis. In that circumstances, the shortage found of finished goods is of meager quantity in the absence of any corroborative evidence of clandestine removal of goods is not sustainable. Therefore, demand of duty against SSIL is also set aside. Demand has been confirmed against SSCL on account of clandestine removal of goods we find that in this case on the basis of statement of Shri Suresh Agarwal of M/s Raghav Enterprises demand sought to be confirmed against the appellant SSCL that Sada Shiv Group is selling goods to M/s Raghav Enterprises. Admittedly Sada Shiv Group is selling goods to M/s Raghav Enterprises but that is not SSCL that is SSIL which has been found from the records recovered from M/s Raghav Enterprises. No corroborative evidence in support of that claim has been produced by the Revenue before us to allege clandestine clearance of goods by M/s SSCL. Moreover to allege clandestine removal of goods, the third party records have been relied. The said reliance of third party record is not have any eventual value in the light of decision of Raipur Forging Pvt. Ltd. vs. CCE, Raipur I reported in 2016 (335) E.L.T. 297 (Tri. Del.) in the absence of any corroborative evidence. Admittedly apart from records of M/s Raghav Enterprises and statement thereof no evidence has been produced by the Revenue before us to allege clandestine removal. We have seen that in the case of Arya Fibres Pvt. Ltd. vs. CCE, Ahmedabad II (supra) this Tribunal examined the issue of clandestine removal and in para 40 of the said order this Tribunal laid down the parameters to prove clandestine removal of goods which is reproduced here under:-
40. After having very carefully considered the law laid down by this Tribunal in the matter of clandestine manufacture and clearance, and the submissions made before us, it is clear that the law is well-settled that, in cases of clandestine manufacture and clearance, certain fundamental criteria have to be established by Revenue which mainly are the following :
(i) There should be tangible evidence of clandestine manufacture and clearance and not merely inferences or unwarranted assumptions;
(ii) Evidence in support thereof should be of:
(a) Raw materials, in excess of that contained as per the statutory records ;
(b) Instances of actual removal of unaccounted finished goods (not inferential or assumed) from the factory without payment of duty;
(c) Discovery of such finished goods outside the factory;
(d) Instances of sale of such goods to identified parties;
(e) Receipt of sale proceeds, whether by cheque or by cash, of such goods by the manufacturers or persons authorized by him;
(f) Use of electricity far in excess of what is necessary for manufacture of goods otherwise manufactured and validly cleared on payment of duty;
(g) Statements of buyers with some details of illicit manufacture and clearance;
(h) Proof of actual transportation of goods, cleared without payment of duty;
(i) Links between the documents recovered during the search and activities being carried on in the factory of production; etc.
13. Admittedly nothing has been brought on record with corroborative evidence to allege clandestine removal against the appellant. Therefore, we hold that demand against M/s SSCL on account of clandestine removal of goods is not sustainable whereas the demand of Shri Suresh Agarwal is corroborative with the evidence that they are purchasing the goods from Sada Shiv Group and M/s SSIL is selling goods against statutory invoices.
14. We have taken note of the fact that during the course of investigation an amount of Rs. 47,00,000/- was recovered from the residential premises of Shri Sunny Garg and Shri Kewal Garg and same was presumed by the Revenue. Sale proceeds of the clandestine removed goods. On that issue the Adjudicating Authority has observed as under :-
7. Scrutiny of records/documents (loose papers, note pads & diaries) recovered from the residential premises of Shri Suresh Kumar Aggarwal Proprietor of M/s RE, ,vide Panchnama dated 21/10/2005, revealed that record mentioned at Sl. No. 4 was a loose paper file containing the details of the quantity of the material (Alloy rounds, flats etc.) sold (date-wise) by M/s RE to various buyers and the payments received from the said buyers. These loose papers have been tabled in a CHART VI. The sum total of this chart shows that during the period April 2005 to 18/10/2005, M/s RE had sold material worth Rs. 2,50,46,080/-. None of these transactions were reflected in the sale books of M/s RE and same appears to be sale proceeds of the clandestine sales discussed above (Chart I, II, II-A and III).
15. On going through the observations made by the learned Adjudicating Authority we are disagreement with that as in the case of excise goods cannot be absolutely confiscated therefore the sale proceeds of the said goods cannot be absolutely confiscated which has been done by the Adjudicating Authority in the impugned order. The Adjudicating Authority has also failed to prove that the cash recovered is the sale proceeds of clandestine removed goods. Therefore, the impugned order qua confiscation of cash seized is contrary to law which shows that the Adjudicating Authority has not apply mind for absolute confiscation of currency seized during the course of investigation. Therefore, we hold that the seized currency during the course of investigation cannot be confiscated without any evidence that same is the sale proceeds of excisable goods cleared clandestinely. Therefore, we hold that absolute confiscation of the seized currency of Rs. 47,00,000/- is not sustainable accordingly the confiscation is set aside and the Adjudicating Authority is directed to release the said amount immediately to the appellants.
16. As we hold that demands against the appellants are not sustainable, therefore, penalty on all the appellants are not sustainable. In view of the above observations, the impugned order is set aside. Appeals are allowed with consequential relief, if any.
(Operative part of the order pronounced in the open court.) (Ashok Jindal) Member (Judicial) (B. Ravichandran) Member (Technical) PK