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2020 ] BORSAD TOBACCO CO. PVT. LTD. v. COMMR. OF C. EX. & S.T., AHMEDABAD-III 161

AZB/AHD/2013, dated 10-6-2013 set aside the order-in-original dated 5-2-2009
and 7-3-2013 and remanded the matter back to the adjudicating authority to con-
sider issue along with the issue of classification after getting the samples re-
tested. The Revenue, thereafter sent two samples, viz. (i) “Afzal (Regd) brand
Snuff Tobacco and (ii) Tobacco Powder drawn under panchnama dated 27-10-
2017 to the Central Revenue Chemical Laboratory (CRCL), New Delhi for re-
testing to ascertain “whether the sample is snuff or preparation containing snuff
and whether the sample is manufactured tobacco or otherwise”. The Jt. Director,
CRCL, New Delhi vide letter dated 18-10-2016 returned the sample without test-
ing contending that it was not possible to test the samples after 9 years from the
date of drawl. The appellants were, thereafter, given personal hearing wherein
they filed written submissions. The adjudicating authority vide impugned Or-
der-in-Original No. AHM-EXCUS-003-COM-05-06-17-18 dated 17-11-2016 or-
dered confiscation of 57600 kg of manufactured tobacco branded as “Afzal brand
Snuff Tobacco” under Rule 25 of the CER, 2002 with an option to redeem the
same on payment of redemption fine of Rs. 7 lakh u/s 125 of the Customs Act
and also ordered recovery of Central Excise duty of Rs. 19,57,824/- along with
penalty on the ground that the seized goods are liable for confiscation as the
same were manufactured without possessing central excise registration and were
ready for despatch clandestinely under the guise of non-manufactured tobacco,
hence liable to redemption fine. He also imposed penalty of Rs. 4 lakhs on M/s.
SEPL under Rule 26 of the CEA, 1944. In respect of show cause notice dated 28-4-
2010, the adjudicating authority held that the goods “Afzal Brand Snuff Tobacco”
will be classified as branded manufactured chewing tobacco falling under Chap-
ter sub-heading 2403 99 10 of the CETA. He confirmed Excise duty demand of
Rs. 1,90,38,063/- on 559650 kg on the ground that the appellant has clandestinely
manufactured said quantity of branded manufactured tobacco under the brand
name “Afzal brand Snuff Tobacco” falling under the chapter sub-heading 2403
99 10 of the CETA. He also ordered for payment of interest and also imposed
equal amount of penalty u/s 11AC read with Rule 25 of CER, 2002. A penalty of
Rs. 5 lakhs on M/s. SEPL on the ground that they are also involved in above ille-
gal activity as it tried to prove that the excisable goods cleared from the factory
of the appellant were actually exported without any specific evidence, so as to
help the appellant to wriggle out of the duty liability. Personal penalty was also
imposed upon co-appellants. Being aggrieved, the appellants have filed the pre-
sent appeals.
2. Shri Prakash Shah Ld. Counsel appearing for the appellant submits
that the demands is based totally upon assumption and presumption as no goods
were found to have been removed in domestic market. There is no identified
buyer in the domestic market of such goods. No evidence has been adduced by
the Revenue that the goods manufactured were chewing tobacco. The goods are
unmanufactured tobacco and the reliance placed by the Revenue on the opinion
of the Chemical Examiner, Vadodara dated 22-4-2008 cannot be relied upon. Pre-
viously the Chemical Examiner in his report dated 28-3-2008 had only stated that
the sample is in the form of coarse brown powder. It is other than snuff. The
sample “UR” may be considered as manufactured tobacco. The report did not
show as to how the said conclusion has been reached. Shri Faisal Yunusbhai
Fazlani in his statement dated 3-4-2008, when showed the said report, had clearly
disagreed with the report of the Chemical Examiner. The Supervisor, Shri Sal-
imbhai Yakubbhai Momin has clearly stated in his statement that the goods were

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