2010 (7) TMI 420 - AT - Central Excise

Rectification of mistake - point raised but totally ignored by the authority - no statement in the applications to the effect that the point was specifically raised but was not considered by the Tribunal - no ground for allowing the applications Application is dismissed

Summary

Issues:
Appeal against dismissal of appeals by lower authority without considering important point; Allegation of clandestine removal based on estimation without actual weighment; Onus of proving clandestine removal on Department; Requirement of positive evidence to support allegations; Failure to establish specific point raised before Tribunal.

Analysis:
The judgment pertains to an appeal against the dismissal of appeals by the lower authority without considering a crucial point raised by the applicants. The contention put forth is that the mere stock taking by eye estimation or using the average method, without actual weighment of goods, to accuse the assessee of shortage for clandestine removal is impermissible. It is emphasized that the burden of proving clandestine removal always lies with the Department, and there must be positive evidence supporting such allegations. Reference is made to various judgments to support this argument. The applicants assert that the important point was indeed raised before the Tribunal during the previous order. However, upon examining the order dated 4th September, 2008, it is observed that no support is found for the applicants' contentions. The judgment highlights the necessity for parties to file affidavits disputing facts or asserting that specific points were raised but ignored, immediately after the order's pronouncement, as per the established legal procedure.

The judgment underscores that the applicants failed to comply with the requirement of filing an affidavit to establish the specific point was raised before the Tribunal. The absence of any categorical assertion in the applications regarding the point being raised but not considered by the Tribunal is noted. Consequently, the lack of grounds for allowing the applications is cited as the reason for dismissing them. The judgment emphasizes the importance of following the legal procedure to establish facts and contentions before the Tribunal. The applications are ultimately dismissed, with the matter being disposed of accordingly.