2009 (1) TMI 637

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..... r per : Jyoti Balasundaram, Vice-President]. We have heard both sides on the appeal of the assessee against confirmation of demand of duty of Rs. 43,35,307/- together with interest and penalty of equal amount under Section 11AC of the Central Excise Act, 1944. 2. The case of the department, in brief, is that the EOU had clandestinely cleared grey and processed fabrics in excess of the quan .....

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..... prepared on the estimates only and not meant to satisfy any statutory requirement. The relevant paragraph of the Tribunal s earlier order is reproduced herein below :- 4. After giving careful consideration to the submissions, I find that the finding of clandestine removal of goods recorded by the original authority was based on some internal records of the EOU of the respondents and their sist .....

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..... m, Manager, incharge of the unit. The Profit Loss Account was also an internal report prepared on the basis of the MMRs as stated by S/S P. Karthick, S. Gopalakrishnan and T. Dhandapani. It was also pointed out that the quantities in MMR and P L Account did not tally. These statements of the assessee have not been rebutted by the Revenue. It has been consistently held by this Tribunal that any e .....

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..... latter unit having physically received any such goods during the said period. I have perused the statements of the employees of the two units and have not found anything to show that any of them admitted the charge of clandestine removal of yarn from the EOU to the DTA unit. In the circumstances, it cannot be held that the Revenue has succeeded in establishing the charge of clandestine removal of .....

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..... through the impugned order, we find that the entire basis of the department s case is MMRs and no other evidence has been relied upon or considered or discussed by the Commissioner to conclude that the charge of clandestine removal has been established against the assessee. The ratio of the Tribunal s order in the assessee s own case (supra) is, therefore, applicable on all fours to the facts of .....

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