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TMI Blog2014 (3) TMI 788X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal in the case of Ravi Foods Pvt. Ltd. v. C.C.E., Hyderabad - [2010 (12) TMI 290 - CESTAT, BANGALORE] and C.C.E., Ludhiana v. Mayfair Resorts - [2011 (3) TMI 175 - PUNJAB AND HARYANA HIGH COURT ] has held that admission by assessee to Income Tax department as regards undisclosed/suppressed sales turnover cannot be held to be on account of clandestine removal of their final products, in the absence of any other corroborative evidence - Decided against Revenue. - E/810/2011 - Final Order No. A/290/2012-EX(BR)(PB) - Dated:- 23-2-2012 - Ms. Archana Wadhwa and Shri Mathew John, JJ. Shri R.K. Verma, AR, for the Appellant. Shri Ravi Chopra, Advocate, for the Respondent. ORDER Being aggrieved with the order passed by the Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s amount. On this basis, the Revenue entertained a view that the respondents have indulged in clandestine activity and excise duty is required to be paid on such clandestine manufacture and clearance of their final products. Accordingly, the proceedings were initiated against them for confirmation of demand. The notice relied upon the fact of surrendering of income to the Income-tax department, the statement of their representative as also the assessment order dated 15-12-2006 passed by the Income-tax authorities, wherein it was observed by the assessing officer that the assessee s firm derived income from manufacturing and sales of valves and cocks. Accordingly, by applying the gross profit ratio as per balance sheet for 2003-2004 on surre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enerated out of sale of goods manufactured by the appellants. There is not even an iota of evidence to establish that the income surrendered to the department in this case was on account of clandestine removal of the goods manufactured by the appellants or it was on account of under valuation or flow back of additional consideration from the sale of goods manufactured and cleared by the appellants. There is merit in the contention of the appellants that it is settled principal of law that the burden of proving a fact is on the person who alleges the same but the department did not produce any evidence on record to prove clandestine removal and that the charge of clandestine removal without any evidence to show excess receipt of raw material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt s decision in the case of D. Bhoormull reported in 1983 (13) E.L.T. 1546. It stands contended that the department cannot be accepted to prove their case with mathematical precision and degree of probability is required to be adopted and inasmuch as the respondents have surrendered excess income to the Income Tax department, it has to be held that it stands earned by clandestine manufacture and clearance of their final products i.e. valves and cocks. It also stands contended that in the relied upon decision, the Tribunal has held in favour of the assessee as the amount involved in those cases were meagre and the Revenue has accepted the said decision on the above ground. Accordingly, it stands prayed that the impugned order be set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X
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