9911796707
TMI Blog2024 (9) TMI 1616X X X X Extracts X X X X X X X X Extracts X X X X ..... ctory premises of the appellant and also no investigation has been made by the department from the transporter and the buyer to whom such goods were alleged to be sold by the appellant. The burden of proof is on the revenue to establish their case beyond doubts and it is required to be discharged effectively and also the allegation of clandestine removal solely made on the basis of statement of the director without any corroborative evidence is not sustainable as held in the case of M/S. VIKRAM CEMENT (P) LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, KANPUR [ 2012 (11) TMI 777 - CESTAT NEW DELHI ]. The said decision was confirmed by the Hon ble Allahabad High Court in the case of COMMISSIONER VERSUS SUNIL KUMAR GUPTA [ 2013 (11) TMI 1557 - AL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er chapter 54 of the Central Excise Tariff Act, 1985. During the physical verification of the stock of goods lying at the unit of the appellant with the statutory records maintained by them, shortage of 25,187 Kgs of imported Polyster Filament yarn (PFY) was found. Shri Vijendra Arya, director of the appellant stated that quantity of 25,187 Kgs of PFY were transferred to the Indian Polyfins Ltd. (Sizing division). Revenue alleged that out of the 25,187 Kgs of PFY, only 2,028 Kgs of Polyster Filament yarn was found and remaining 23,159 Kgs of PFY had been cleared clandestinely through the agent Shri Nathabhai Agrawal and Abhishek Market, Ring Road, Surat without payment of duty and without cover of any duty paying documents. Accordingly appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his context he placed reliance upon the judgment of Rochees Impex Pvt. Ltd. vs CCE, Jaipur [2004 (174) E.L.T. 254 (Tri.- Del.)] 2.2 He also submits that the demand is time barred as show cause notice has been issued under section 28(1) of the Customs Act, 1962 which is for normal period of limitation and without invoking extended period of limitation in terms of section 28 (4) of the Customs Act, 1962. The show cause notice dated 16.01.2008 has been issued after the period of five years from the date of import of Polyester Filament Yarn. He placed reliance on following judgments to support his arguments:- CCE, Pune Vs Emcure Pharmaceuticals Ltd. [2014 (307) E.L.T. 180 (Tri. - Mumbai)] Commissioner Vs Asian Exports [2003 (157) E.L.T. A202 (S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndestine manufacture and clearance, and the submissions made before us, it is clear that the law is well-settled that, in cases of clandestine manufacture and clearance, certain fundamental criteria have to be established by Revenue which mainly are the following : (i) There should be tangible evidence of clandestine manufacture and clearance and not merely inferences or unwarranted assumptions ; (ii) Evidence in support thereof should be of: (a) Raw materials, in excess of that contained as per the statutory records; (b) Instances of actual removal of unaccounted finished goods (not inferential or assumed) from the factory without payment of duty; (c) Discovery of such finished goods outside the factory; (d) Instances of sale of such goods ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
