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TMI Blog2021 (12) TMI 958X X X X Extracts X X X X X X X X Extracts X X X X ..... be leveled against the assessee. In the entire proceedings, no evidence, much less corroborative evidence, has been adduced to show that input goods hae been procured to manufacture goods for clandestine clearance. No efforts have been made by the investigating agencies to establish the existence of any unaccounted manufacturing activity in the form of unaccounted raw material, shortage of stock, shortage of raw material/finished goods, excess consumption of electricity, unaccounted labour payments, interrogation of buyers/transporters or any incriminating record/document to suggest any flow back of cash etc. The Revenue authorities in this case have failed to discharge the burden of proving the serious charge of clandestine clearance or undervaluation with cogent and clinching evidence. It has been consistently held that no demand of clandestine manufacture and clearance can be confirmed purely on assumptions and presumptions and the same is required to be proved by the Revenue by direct, affirmative and incontrovertible evidence. The learned Commissioner made a fundamental error by making assumptions only just to confirm the demand on the allegation of clandestine clearanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Commissioner that finished products of 13884.84 MT have been cleared clandestinely and the appellant is liable to pay Central Excise duty to the tune of ₹ 4,61,54,173/- on the said clearance quantity. Further, he has observed that quantity of 380.39 MT of melting scrap cleared is liable to duty and the Appellant is required to pay ₹ 8,97,197/- on such quantity of melting scrap. Based on the said observations, the learned Commissioner has concluded that the excess clearance of 13884.84 MT of finished goods showing in the Kachha Chithas leads to an unmistakable conclusion that the Appellant has resorted to suppression of production and clandestine removal of their finished goods by utilizing 14456.48 MT of unaccounted raw material. Being aggrieved, the Appellant has preferred the present Appeal before the Tribunal. 3. Shri Kartick Kurmy, learned Advocate appearing on behalf of the Appellant submits that by the impugned order, the learned Commissioner has held that the Appellant has purportedly clandestinely manufactured and removed excisable final products without payment of duty. The learned Commissioner has further confiscated Indian currency of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 (317) ELT A159 (S.C.)] 7. The learned Advocate for the Appellant submitted that there is no corroborative tangible evidence in support of charge of clandestine production and removal and the demand is raised solely on the basis of private records. Further, he submitted that mere matching of the entries in the so called Kachha Chitha with the excise invoice may give rise to doubt but no demand can be confirmed on the basis of doubt. The said charge is a serious charge and has to be proven with tangible, affirmative, cogent and unimpeachable evidence based on independent inquiry which is completely missing in the instant case. He relied on the following judgements in support of his submissions:- Arya Fibres Pvt. Ltd. Vs. CCE [2014 (311) E.L.T. 529 (Tri. Ahmd.)] T.G.L. Poshak Corpporation Vs. CCE [2002 (140) E.L.T. 187 (Tri.-Che)] K. Rajagopal Vs. CCE [2002 (142) E.L.T. 128 (Tri.-Che.)] Continental Cement Co. Vs. UOI [2014 (309) E.L.T. 411 (All.)] Balashri Metals Pvt.Ltd. Vs. UOI [2017 (345) E.L.T. 187 (Jhr.)] CCE Vs. Mittal Pigment Pvt. Ltd. [2018 (16) GSTL 41 (Raj.)] CCE Vs. Arsh Casting Pvt. Ltd. [2010 (252) E.L.T. 191 (HP)] Flevel International V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds with reference to entry of vehicle/truck in the factory premises, loading of goods therein, security gate recorts, transporters documents, such as L.R.s, statements of lorry drivers, entries at different check posts, forms of the Commercial Tax Department and the receipt by the consignees; (v) Amount received from the consignees, statement of the consignees, receipts of sale proceeds by the consignor and its disposal. Whereas, in the instant case, no such clinching or corroborative evidences to the above effect have been brought on record. 15. In the instant case, the entire case of the Revenue is based on the Kaccha Chithas seized from the residence of the Director. The manner in which the said Kaccha Chithas is seized has been strongly agitated by the Appellant. We find that the said Kaccha Chithas/documents should have been seized in the presence of the Director. There is considerable force in the contention of the Appellant that the Kacha Chithas relied upon by the Revenue cannot be a basis to uphold the serious charge of clandestine clearance. It is settled legal position that charge of clandestine clearance is a serious charge and the onus to prove the same is on the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of finished goods at para 17.2 of the Order-in-Original is clearly contrary to the judicial precedents cited supra. 19. We further find that the contention of the learned Commissioner in the impugned Order-in-Original that it is neither feasible nor desirable to cause enquiry at all possible points concerning the clearances at Para 17.5 of the impugned order itself clarifies that the demand has been raised solely on the basis of assumptions and presumption and no corroborative evidence was brought out by the Revenue except the so called Kacha Chithas and statement of Director. 20. We are of the view that the learned Commissioner made a fundamental error by making assumptions only just to confirm the demand on the allegation of clandestine clearance. It is a well settled position of law that serious allegation cannot be made merely on assumptions and presumptions and in the absence of detailed supporting evidence, the charge of clandestine removal cannot be upheld. 21. In view of the above discussions, the impugned order cannot be sustained and accordingly the same is set aside. The Appeal is allowed with consequential relief as per law. (Order pronounced in the open c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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