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TMI Blog2018 (1) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants on the basis of third party evidence which cannot be relied upon. As no investigation was conducted at the end of the appellants to ascertain the facts whether the appellants are indulging and no other corroborative evidence has been brought on record to allege clandestine removal of goods. The proceedings against the appellants are not sustainable. Appeal allowed - decided in favor of appellant. - Excise Appeals No.51380 and 51386 of 2017 (SM) - A/58580-58581/2017-SM[BR] - Dated:- 20-12-2017 - Shri Ashok Jindal, Member (Judicial) Shri Kumar Vikram, Advocate for the Appellants. Shri U. Sengraj, Authorized Representative (DR) for the Respondent. ORDER Per: Ashok Jindal The appellants a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, hence, required to be set aside. He relied on the decision of the Tribunal in the light of the decision of this Tribunal in the case of Rudra Ventures Pvt. Ltd. Vs. CCE, Ludhiana 2016 (344) E.L.T. 472 (Tri. Chan.). 4. On the other hand, learned AR reiterated the findings of the impugned order. 5. Head the parties and perused the record. 6. In this case, the facts are not in dispute i.e. an investigation was conducted at the end of one of supplier M/s Ambika Ispat, Raipur and some documents were recovered from the possession of the peon who was located outside the factory premises. On the basis of that diary, statement of the Director of M/s Ambika Ispat were recorded who stated that sometimes, they are clearing goods cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigated in that circumstances, the charge of clandestine removal of goods is not sustainable. The allegation has been made on the basis of assumption and presumption, no statement of the appellant was ever recorded, none of the person whose statement were recorded and relied has implicated the name of the appellant. Merely, as the goods recovered from a trader, it is alleged that the goods have been cleared by the appellant clandestinely. In the absence of evidences namely procurement of raw material, the manufacturing process, flow back of money, mode of transportation, the said allegation is not sustainable. As all the evidence to alleged clandestine removal are absent from the investigation, in that circumstances, allegation of cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o allegation of clandestine production and removal of sugar from the assessee s factory. Therefore, without alleging clandestine production and removal of sugar there cannot be any allegation relating to clandestine production and removal of molasses. In other words, the department s case has no legs to stand on its own. Consequently, the department s allegation has no corroborative evidence to support its case. Since molasses is a controlled item, both under the Central Excise law and also under the State Excise laws, there cannot be any clandestine production and removal without the same being noticed by the State excise authorities. As rightly contended by the assessee, no case has been made against them by the State excise authorities w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be sustained unless there is clear and categorical evidence for removal of goods without payment of duty. There has to be tangible evidence before a conclusion can be drawn of production and clearance of goods. Any conclusion drawn on the basis of interference involving unwarranted assumptions are vitiated by an error of law. Further, in the case of molasses, the State excise authorities have a physical control and special supervision staff are posted in the factory and distillery unit to safeguard the case of State excise revenue on molasses and allied products. The State excise authorities, in this case, have not made any allegation of shortage of molasses or any unaccounted production of molasses. In view of this position, when there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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