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TMI Blog2023 (11) TMI 748X X X X Extracts X X X X X X X X Extracts X X X X ..... clandestine removal of excisable goods. Further, it is noted that if the Department has raised duty demand, then the onus of proving excess production and clandestine removal of excisable goods is on the Department. It is also noted that the impugned order is prima facie based on assumption and presumption and there is no evidence which may suggest excess production or clandestine removal of excisable goods by the appellant. It is found that in the case of M/S. OSCAR REMEDIES PVT. LIMITED, SHRI NAVDEEP DHINGRA, DIRECTOR VERSUS COMMISSIONER OF CENTRAL EXCISE ST, PANCHKULA [ 2017 (7) TMI 404 - CESTAT CHANDIGARH] , this Tribunal on identical facts relying upon the decision of VARDHMAN CHEMTECH LIMITED VERSUS CCE, CHANDIGARH [ 2016 (7) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to partner's income generated from sale/purchase of properties on earnest money and this income has no relation with regular activities of manufacturing. They have shown this income to cover up the discrepancies pointed out by the income tax department during the course of survey. It was also observed that the said additional income declared before the income tax authority was under various heads i.e. excess cash in hand 15 Lakh, difference in valuation of sales 10 Lakh and sundry advance receivable of Rs. 75 Lakh. On the basis of the investigation conducted by the department, the department entertained the view that the appellant had no other business activity and any other regular income and therefore, it is obvious that miscella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of mere surrendered income before Income Tax Authorities, excise duty cannot be demanded. Sale tax is payable on sale of goods like excise duty on manufacture of goods. He further submits that the issue of levy of sale tax/excise duty on the basis of income surrendered before Income Tax Authorities has come up for consideration before various courts including Hon'ble Supreme Court. He further submits that this issue is no more res-integra and has been settled by the various decisions of the Tribunal and the High Court wherein the courts have clearly held that excise duty/sale tax cannot be demanded on the basis of income surrendered before Income Tax Authorities. In support of his submission, he relied upon the following decisions:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was the result of sale purchase of property but the appellant failed to give any evidence to substantiate this submission, instead the appellant submitted a letter indicating that they do not have any documentary evidence to substantiate their plea of having generated income from the sale purchase of property. He further submitted that Ld. Commissioner has rightly relied upon the statement of partner of the appellant firm because he did not retract his statement made to the income tax authorities. In support of his submission, he relied upon the following decisions:- Collector of Customs, Madras vs. D. Bhoormull reported as 1983 (13) ELT 1586 (SC) Commissioner of Central Excise vs. International Cylinders Pvt. Ltd. 2010 (255) ELT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on the basis of Income surrendered before the Income Tax Authorities without adducing any independent evidence with regard to purchase of raw material, manufacture of finished goods and sale thereof or not? 8. The said issue came up before this Tribunal in the case of M/s Arisudana Industries Ltd. (Supra) wherein this tribunal has observed as under:- 8. As duty is payable on manufacture of the goods. Revenue have not come up with any positive evidence to shows that the appellant has manufactured excisable goods and cleared without payment of duty. In the absence of such evidence, duty cannot be demanded from the appellant. The same view was taken by this Tribunal in the case of Zalota Industries therefore, the duty cannot be demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve evidence. Similarly, in the case of C.C.E., Ludhiana v. Mayfair Resorts - 2011 (22) S.T.R. 263 (P H), it was held so. 10. Further, we find that in the case of Continental Cement Company cited (supra), the Hon ble High Court of Allahabad has held in Para 12 to 14 as under:- 12. Further, unless there is clinching evidence of the nature of purchase of raw materials, use of electricity, sale of final products, clandestine removals, the mode and flow back of funds, demands cannot be confirmed solely on the basis of presumptions and assumptions. Clandestine removal is a serious charge against the manufacturer, which is required to be discharged by the Revenue by production of sufficient and tangible evidence. On careful examination, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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