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TMI Blog2004 (1) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... e removal of the goods during the period March to December, 1996 without payment of duty while penalty on other appellants had been imposed under Rule 209A of the Rules. The allegations of clandestine removal of the goods against the company had been based on the 14 packing slips and 4 GRs allegedly recovered from their factory premises on 6-3-97 at the time of checking by the officers of Central Excise. 3. The learned Counsel has contended that there is no tangible evidence to substantiate these allegations and to prove the actual removal of the goods by the company appellant No. 1 under these packing slips and GRs to appellants Nos. 3-4. The duty demand has been wrongly confirmed by raising assumptions and presumptions. The impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e packing slips were received by his son, Manish Agarwal from the company appellant No. 1. But his statement does not find corroboration from any other evidences. Even the statement of Manish Agarwal was never recorded during the investigation or adjudication proceedings to seek corroboration to the statement of J.K. Gupta. The record shows that J.K. Gupta was not even initially served with any show cause notice along with the company appellant No. 1, its director appellant No. 2, Praveen Aggarwal, Partner of M/s. Anant Corrugators (appellant No. 3) and Rajeev Sharma Partner of M/s. Carton India (not appellant in this appeal). It is only later on that J.K. Gupta (appellant No. 4) was served with a show cause notice alleging receipt of the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his premises. The penalty under Rule 209A, against M/s. Carton India has already been set aside by the Commissioner (Appeals) vide order dated 22-12-2003 by holding that the charge of receiving goods from the company appellant No. 1 without payment of duty did not stand proved. 7. It is well settled that the charge of clandestine removal of the goods by a manufacturer cannot be based on assumptions and presumptions. This charge has to be proved by adducing cogent, convincing and tangible evidence. In the present case, in the light of the discussions made above, the Department has failed to substantiate this charge against the company appellant No. 1. That being so, confirmation of duty with penalty against company appellant No. 1 and impos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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