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TMI Blog2010 (7) TMI 347X X X X Extracts X X X X X X X X Extracts X X X X ..... o the job worker or the customer to corroborate the clandestine removal of the goods - goods are to be removed without payment of Central Excise duty not acceptable - To prove clandestine removal of the goods, Revenue has to establish through corroborative evidence but not by mere statement for which no cross-examination allowed - E/718 and 963/2007 - A/313-314/2010-WZB/C-IV/SMB - Dated:- 9-7-2010 - Shri Ashok Jindal, Member (J) REPRESENTED BY : S/Shri S.M. Vaidya, JDR, for the Appellant. Shri Prashant Patankar, Advocate, for the Respondent. [Order]. - The Commissioner (Appeals) in the impugned order has :- (a) Reduced the redemption fine on Flexible printed laminated films from Rs. 1,00000/- to Rs. 25,000/-. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of fine of Rs. 1,00,000/-. (c) The Hologram Machine was also confiscated and was allowed to be redeemed on payment of fine of Rs. 50,000/-. (d) Apart from that a penalty of Rs. 1,00,000/- was also imposed on the appellant firm M/s. ALL. Aggrieved from, the same M/s. ALL filed appeal before the Commissioner (Appeals), who reduced the redemption fine on flexible printed laminated film truck and set aside the confiscation of the Hologram Machine. He also reduced the penalties. Aggrieved from the said order, both (M/s. ALL and the Revenue) filed the appeals. 4.The learned Advocate submits that as per panchanama, the search took place on 18-8-2003 at about 11 a.m. and seized a truck which was found loaded with finished ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground for confiscation of the goods. M/s. ALL has not taken any Cenvat Credit on the Hologram machine, hence not liable for confiscation as rightly held by the Commissioner (Appeals). There is no removal of the goods from the factory and there was no intention to evade duty, penalty under Rule 25 of the Central Excise Rules is not justified. Moreover, there is no duty confirmed on the appellant. The penalty under Rule 25 can be imposed to a maximum Rs. 10,000/- if at all, possible. Hence prayed the impugned order be set aside. 5.On the other hand, Shri S.M. Vaidya DR submitted that there was nil opening stock on 18-8-2003 and at the time of visit, a truck loaded with the finished goods was found in the factory which was above to leave w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the clandestine removal of the goods. The presumption that goods are to be removed without payment of Central Excise duty is not acceptable. To prove clandestine removal of the goods, Revenue has to establish through corroborative evidence but not by mere statement for which no cross-examination is allowed. 8. With regard to the Hologram machine it is admitted fact that M/s. ALL procured the machine without duty paying document and not availed any Cenvat credit. Hence, the confiscation cannot be done for which no Cenvat credit has been availed by M/s. ALL. As no credit has been availed duty paying document is not required. 9. With these observations, I hold that in this cases as goods were not removed from the factory, no ch ..... X X X X Extracts X X X X X X X X Extracts X X X X
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