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TMI Blog1997 (12) TMI 265X X X X Extracts X X X X X X X X Extracts X X X X ..... Rao, SDR, for the Respondent. [Order per : Gowri Shankar, Member (T)]. Application is for waiver of pre-deposit of duty of Rs. 67.00 lacs and penalty on the applicant imposed of Rs. 1.00 crore. 2. Advocate for the applicant explains that duty has been demanded on the finding that the applicant, a manufacturer of sweetened aerated waters (SAW), manufactured and cleared, without payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are to be followed which has not been done. With one exception, the persons who have been questioned had stated that this formula could not be adhered to. On limitation, he contends that the applicant had furnished to the Department in 1987 the formula, in connection with a claim for set off of duty under Notification 325/86. Therefore, there can be no allegation of suppression of facts. He says ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely workable. He says that this will however not operate as limitation because the Department did not apply the formula with regard to the RT 12 returns filed of the SAW products consequent upon the notification having been rescinded shortly after issue in 1987-88 prior to the period for which the demand is made. The applicant had, by not disclosing to the Department that production by it will not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have taken into account the shortfalls that would arise seems prima facie to be nothing more than a presumption. He has also gone by the fact that evidence with regard to shortages occurring in other manners such as spilling from various machines has not been produced. It is settled law that clandestine removal must be established by the Department, and that it cannot be based on presumption. A me ..... X X X X Extracts X X X X X X X X Extracts X X X X
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