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TMI Blog2016 (1) TMI 1009X X X X Extracts X X X X X X X X Extracts X X X X ..... e the clandestine removal and also the demand is time barred. Consequently, we allow the appeal of the appellant by setting aside the impugned order. - Decided in favour of assessee - Appeal No. E/1808/2007-EX(DB) - Final Order No. A/70082/2015 - Dated:- 30-11-2015 - PS Pruthi, Member (Technical) And SS Garg, Member (Judicial) For the Petitioner : Shri S P Ojha, Consultant For the Respondent : Shri Rajeev Ranjan, AR ORDER Per: S S Garg: This appeal is directed against order-in-appeal passed by the Commissioner (Appeals) vide order dated 17.5.2007 upholding the decision of the adjudicating authority. 2. Briefly the facts of the case are that the appellant is engaged in the manufacture of branded chewing tobacco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals) who vide his order-in-appeal dated 17.5.2007 upheld the decision of the Deputy Commissioner and now the appellant is before us by way of the present appeal. 4. The learned counsel for the appellant submitted that there was no shortage of raw tobacco and coloured tobacco which is manifested on record as the alleged shortage has been explained by the manager, Shri Onkar Nath Gupta. The learned counsel further submitted that Rule 10 of the Central Excise Rules, 2002 does not require an assessee to make as many entries as there are transactions. He also submitted that charge of clandestine removal is based on mere presumptions and assumptions and moreover, the shortage was explained on the spot with verifiable facts and raw tobacco a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the officers on their visit on 2.12.2004, but the officers did not physically verify the same. 5. On the other hand, the learned AR reiterated the findings of the Commissioner (Appeals). 6. We have heard both the parties and perused the records. For better appreciation, Rule 10 of the Cenvat Credit Rules, 2004 reproduced below:- (i) Every assessee shall maintain proper records, on daily basis, in a legible manner indicating the particulars regarding description of goods produced or manufactured, opening balance, quantity produced or manufactured, inventory of goods, quantity removed, assessable value, the amount of duty payable and particulars regarding amount of duty actually paid. 6.1 Further, it is pertinent to note that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods by the assessee has to be established by the Department by producing cogent, convincing and tangible evidence and such a charge cannot be based on assumptions and presumptions. In this context, reference may be made to - (i) TGL Poshak Corpn. v. CCE, 2002 (140) E.L.T. 187; (ii) MM Dyeing Finishing, 2002 (139) E.L.T. 143; (iii) K. Raja Gopalv. CCE, 2002 (142) E.L.T. 128; (iv) Prince Ghutka Ltd. v. CCE, 2002 (141) E.L.T. 148; and Indra Metal Works v. CCE, 1999 (108) E.L.T. 745, wherein such a ratio of the law has been laid down. 6.3 The learned counsel for the appellant has submitted that the entire demand is barred by limitation. He further submitted that the extended period as envisaged under proviso to Section 11A(1) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use notice had been issued invoking the extended period of limitation in terms of proviso to Section 11A(1), as it was alleged that the noticee ad suppressed the facts with an intention to evade payment of duty. We find force in the contention of the appellants that the show cause notice dt. 7-10-04, had been issued after a lapse of one year from the date of visit of the Central Excise Preventive Officers in the premises of the appellant. In fact, the officers visited the units on 26-3-03. The units have been registered with the Central Excise and it cannot be said that the excise department was not aware of the activities of the department. Hence, the demands are time-barred. Therefore, we are of the considered opinion that the entire ..... X X X X Extracts X X X X X X X X Extracts X X X X
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