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TMI Blog2012 (11) TMI 1023X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been the result of undeclared production and clandestine removal of excisable goods. We may note that since the Department has raised duty demand, the onus of proving excess production and clandestine removal of excisable goods is on the Department. The impugned order is prima facie based on assumption and presumption and there is no evidence which may suggest excess production or clandestine removal of excisable goods by the appellant. Therefore, in our view, the appellant have a strong prima facie case. Accordingly we allow the stay applications and waive condition of pre-deposit of duty demand, interest and penalty and recovery thereof stayed till disposal of the appeals - Stay granted. X X X X Extracts X X X X X X X X Extracts X X X X ..... on 27-8-2009 to avoid litigation." Since no specific source of that income was disclosed, the Department was of the view that aforesaid income of Rs. 1 crore has been generated as a result of clandestine removal of excisable goods without invoices and without payment of duty. Accordingly, show cause notice raising demand of Rs. 2,13,47,150/- was issued to the appellant firm which also proposed to impose penalty. Show cause notice was also served to the second appellant i.e. partner of the firm proposing to impose penalty on him. Show cause notice was adjudicated vide order-in-original dated 9-5-2012 whereby the Commissioner (Adjudication) confirmed the excise duty demand raised by the show cause notice against the appellant firm along with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulted Rs. 1 crore profit to the appellant. It is also contended that above referred income of Rs. 1 crore has been explained by the appellant firm in his balance sheet ending 31st March, 2010 as the result of partner's contribution to the capital account which explanation has been accepted by the Income Tax Department. Thus it is contended that the appellant has a strong prima facie case and is likely to succeed in appeal. 5. Shri Devender Singh, ld. Jt. CDR on the contrary has submitted that Commissioner (Adjudication) has rightly confirmed the duty demand because admittedly the appellant firm has generated undisclosed profit of Rs. 1 crore which obviously would have been the result of the clandestine production and removal of excisable g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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