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TMI Blog2017 (12) TMI 1431X X X X Extracts X X X X X X X X Extracts X X X X ..... se, the demand of duty and imposition of penalty are not justified. Apart from the shortages, there is virtually no evidence on record to show the clandestine activities of the appellants - In the absence of any identification of the buyers, transporters, receipt of consideration etc., the findings of the clandestine activities cannot be upheld. Appeal allowed - decided in favor of appellant. - Ex. Appeal Nos.70157-70159/17 - A/71511-71513/2017-SM[BR] - Dated:- 13-11-2017 - Mrs. Archana Wadhwa, Judicial Member Shri S.P. Ojha, Consultant for the Appellant (s) Shri Pawan Kumar Singh, Supdt. (A.R.) for the Revenue ORDER Per: Mrs. Archana Wadhwa All the three appeals are being disposed of by a common order a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acco has been converted into branded chewing tobacco and cleared without the payment of duty. 4. The appellants vide letter dated 07.02.2014 and dated 24.03.2014 informed the Assistant Commissioner (Preventive) Central Excise that 18 bags containing 630 kgs of coloured tobacco being moist was cleared for drying vide chit number 23+9 dated 24.10.2014, as such, there was no shortage in stock of coloured and entire stock of tobacco was lying within the factory premises. 5. On the above basis, show cause notice dt. 27.06.2014 was issued demanding duty amounting to ₹ 4,43,848/- and proposing for imposition of penalty under section 11 AC of the Central Excise Act 1944 read with Rule 25 of the Central Excise Rules, 2002. Since the duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anded chewing tobacco and remove it within one day. It is settled law that he who asserts must prove his assertion by producing cogent evidence and/or producing witness. No evidence has been adduced to prove allegation of clandestine removal, therefore, even otherwise, the demand of duty and imposition of penalty are not justified. The appellants refer to the following decisions _ (i) CCE Kanpur Vs. Terla Footwear Exports Ltd. [2014 (306) ELT 629 (Tri.-Delhi) (ii) Raj Ratan Industries Ltd Vs. CCE Kanpur [2013 (292) ELT 123 (Tri. Delhi)] Annexure-II (iii) Final Order No.A/70087/2015 11. 630 kg of coloured tobacco being moist was issued for drying vide chit No.239 dated 24.01.2014. This fact was bought to the notice of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ires drying of the coloured tobacco for a period of three to five days. In such a scenario, to hold that the appellants have used the coloured tobacco in the manufacture of their final product, which stands cleared by them without payment of duty, is entirely on the basis of surmises and conjectures. In the absence of any identification of the buyers, transporters, receipt of consideration etc., the findings of the clandestine activities cannot be upheld. 13. In view of the foregoing, I find that no justifiable reason to uphold the impugned order. The same are accordingly, set aside and all the appeals are allowed with consequential relief to the appellants. (Pronounced in the open Court on 17/11/17) - - TaxTMI - TMITax - Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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