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TMI Blog2018 (8) TMI 788X X X X Extracts X X X X X X X X Extracts X X X X ..... ification of transporters or buyers. The entire case stand made out on the basis of the entries made in the said private notebook without their being any corroborative evidences. It is well settled law that the allegations of clandestine removal are required to be established by production of sufficient and positive evidences, the onus for which lies heavily upon the Revenue - demand alongwith penalty set aside. Demand of duty in respect of the goods seized from the dealer’s premises and confiscation of the same along with the imposition of penalties - Held that:- It is well settled law that the goods found in the market are deemed to be duty paid unless established to be cleared without payment of duty by production of sufficient evidences. Inasmuch as we have already held that there is virtually no evidences on record to show clandestine removal on the part of the appellant, the confirmation of demand in respect of such goods found at the dealer’s premises cannot be upheld - confiscation and penalties set aside. Shortages and excesses found in the assessee’s premises which is spread over a period of time being below the permissible tolerance limit as per the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finished goods worth ₹ 3.88 crores approx involving duty of around 60.38 lakhs. 4. In the above background, show cause notice dated 26.07.2007 was issued demanding duty of ₹ 60,38,271/- from M/s Shiva Polyplast Pvt. Ltd. along with proposal to impose penalties on the said unit as also on their Director. A separate show cause notice dated 13.04.2007 was issued demanding duty of ₹ 2,16,926/- in respect of goods seized from the dealer s premises along with proposal to confiscate the goods. 5. The said two show cause notices were contested by the appellants. It is seen that in respect of the main notice proposing confirmation of demand of duty of ₹ 60.38 lakhs approx, the appellant made a request to cross-examine the number of witnesses including the deponent of various statements. During the course of cross-examination the deponents retracted from their statements and all the dealers denied having purchased any goods from the manufacturer without duty paid invoices. As regards the spiral notebook, the director of the company contented that the statement given by him was retracted at the first available opportunity by not only lodging Police complaint but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elating to sale projections and the targets required to be met by the dealers and there is virtually no evidence establishing that the difference between the projected figures shown in these private records and were cleared without payment of duty to the dealers resulting in clandestine clearance. Similarly, in respect of 18 loose slips recovered from the premises, they have contented that though the said slips contains name of the persons but nobody was contacted by the Revenue so as to confirm the receipt of the non-duty paid goods. 9. We find that the allegations are of clandestine removal in respect of huge quantum of the final products having been manufactured by the appellant to the extent of around 3.88 crores approx., which require a lot of raw material, their actual manufactured in the assessee s factory in a clandestine manner, transportation of the same, buyers who have purchased it and the receipt of consideration by the appellant from their buyers. There is virtually no evidence produced by the Revenue as regards procurement of such a huge raw material or identification of transporters or buyers. The entire case stand made out on the basis of the entries made in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Continental Cement Company V/s Union of India reported at 2014 (309) E.L.T. 411(All.) has held that clinching evidence is required as regards the purchase of raw material, use of extra electricity, sale of final products, transportation, payment, the mode and flow back of funds etc. and demands cannot be confirmed based on presumptions and assumptions. The Hon ble High Court further observed that the charges of clandestine removal is a serious charge required to be proved by the Revenue by the tangible and sufficient evidences and mere statement of buyers based on their memories was insufficient without support of any corroborative documentary evidences. To the same effect is another decision of the Hon ble Allahabad High Court in the case of Triveni Engineering Industries Ltd. V/s Commissioner of Central Excise, Allahabad reported at 2016 (334) E.L.T. 595 (All.) Tribunal in the case of T.G.L Poshak Corporation V/s Commissioner of Central Excise, Hydrabad reported as 2002 (140) E.L.T. 187 (Tri.-Chennai) has held that charge of clandestine removal based on notebooks maintained by the employees or accountant is not sustainable unless supported by corroborative evidences ..... X X X X Extracts X X X X X X X X Extracts X X X X
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