2009 (4) TMI 627

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..... tory or its clearance therefrom. Therefore, their statements to the effect that the slips recovered indicated details of the clearance of yarn cannot be relied upon - the Revenue has not established the case of clandestine removal of cotton yarn without payment of duty by the respondents. Clandestine clearance cannot be found on assumption and presumption; it has to be based on concrete evidence. Appeal dismissed - decided against Revenue.
Shri P. Karthikeyan, J. REPRESENTED BY : Shri N.J. Kumaresh, SDR, for the Appellant. Shri M.N. Bharati, Advocate, for the Respondent. [Order]. - These are appeals filed by the Revenue on 27-9-01, on a surprise visit to the premises of the respondents M/s. Raja Rajeswari Mills (B) Unit, the officer .....

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..... tion and clearance of cotton yarn in the factory. Five buyers who alone had initially deposed that they had purchased non duty paid yarn covered by the chits recovered, retracted the same on receipt of Show Cause Notice. These witnesses had not been allowed to cross-examined by the appellants though such a request was made. He found the judgment of the Apex Court in Commissioner v. Sushil Kumar Halwai [2003 (157) E.L.T. A315 (S.C.)] which held that charge of clandestine removal could not be based on presumption and assumption applicable to the facts of the subject case. He also relied on a judgment of the Apex Court in Nuwood Private Ltd, Madras v. Superintendent of Central Excise [1981 (8) E.L.T. 184 (Mad)] to hold that the order impugned .....

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..... eposition could not be relied on to advance the case of the Revenue. The impugned order had been passed in accordance with law and remand would serve no purpose; the five buyers could not be examined to gather evidence as their initial statements had not been relied upon in issuing the Show Cause Notice basic to the proceedings. Ld SDR does not controvert these submissions; he the only ground raised in the appeal. 4. I have carefully considered the facts of the case and the submissions made by both sides. The entire case of the Revenue is totally based on some slips/chits recovered from the factory premises of the appellants. No responsible person belonging to the assesses' establishment was questioned in connection with the recovery .....

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