2014 (12) TMI 367

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..... f Rs. 21.25 crores approximately. In addition, penalties of different amount stand imposed on the other applicants who are Managing Director, Deputy Managing Director and employees of M/s Triveni Glass Ltd. 2. After hearing Shri B.L. Narasimhan, learned Advocate for the appellants and Shri Pramod Kumar, learned Jt. CDR for the Revenue, we find that the appellant is engaged in the manufacture of sheet glass of various sizes and shapes. The appellants factory was visited by the Central Excise officers on 16/07/1994 and a truck was found loaded with the sheet glass, in a ready to move condition. The goods loaded in the truck were not found to be entered in the RG-1 register and no Central Excise invoice was found to have been issued. Revenue .....

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..... , we note that the entire case of the Revenue is based upon the theoretical calculation of the alleged excess production. It is seen that the Revenue recorded the statement of three employees during the course of investigations and all the three gave different unit of capacity and production. The Revenue picked up the maximum stated production by one of the employees and by ignoring the stated production by other deponents, calculated the theoretical production, which the appellant would have achieved. We find that the appellant had also mentioned their installed capacity in the balance sheet as also had declared the same to the Directorate of Industries. Instead of adopting the said declared installed capacity, the Revenues approach to pi .....

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..... , clearance of the same through transporters and identification of the buyers and the consequent flow of money from the buyers to the appellants. It is well established, by catina of judgment that the allegations of clandestine removal cannot be upheld on the basis of surmises and conjunctures and are required to be established by production of positive and tangible evidence. In the present case, we do not even find, prima facie, preponderance of probabilities to conclude the allegations of clandestine removal against the assessee. 7. Apart from prima facie holding in favour of the appellant on merits, we also take into consideration the appellant's plea of financial hardship. They have been declared a sick company by the BIFR vide their o .....

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