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TMI Blog2005 (3) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... s well as the Revenue together. In pursuance to the orders passed by the Hon'ble Supreme Court all the appeals are being taken up together for hearing. 2.Brief facts of the case are that M/s. Prince Gutka Ltd. are engaged in the manufacture of Pan Masala under the Brand name of 'Prince Gutka' 'Yamu'. A show cause notice was issued on 12-9-1995 to the appellants on the ground that M/s. Prince Gutka Ltd. cleared Pan Masala without payment of duty as well as by under valuing the price of Pan Masala on which the duty has been paid. In the show cause notice a demand of Rs. 9,53,88,001.00 was demanded on account of clandestine removal of the goods and on demand of Rs. 10,88,498/- was demanded on account of under valuation of the goods cleared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd admitted that they were purchasing Pan Masala Gutka Scented Supari etc. from M/s. Prince Gutka. The investigation conducted on the basis of the record recovered from the dealer i.e. M/s. H.H. Traders (P) Ltd. shows that M/s. Prince Gutka Ltd. was clearing Pan Masala and Pan Masala Gutka without payment of duty from their factory and by suppressing the value of products to evade duty. The contention is that the only evidence in support of demand is the statement of dealers. 4.The contention of the appellants is that all the documents relied upon by the Revenue is recovered from the residential premises of Director of M/s. H.H. Traders (P) Ltd. and no such record was recovered from the premises of the manufacturer. Some records were in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in 2002 (140) E.L.T. 362 (All.) and Grauer Weil (India) Ltd. v. CCE - 2000 (116) E.L.T. 618, that the standard of proof in cases of clandestine removal is proof beyond doubt and not that of preponderance of probabilities as held in CCE v. Universal Polythelene Industries - 2001 (130) E.L.T. 228 and Sharma Chemicals v. CCE, Calcutta-II - 2001 (130) E.L.T. 271 (T); that positive evidence is necessary to sustain a charge of clandestine removal as held in Grauer Weil (India) case, supra. He also mentioned that it has been held by the Tribunal in the case of CCE, Calcutta-II v. Tube Bend (Cal.) Pvt. Ltd. - 2001 (136) E.L.T. 839 (T) that "the charges of clandestine removal are required to be proved beyond doubt by production of evidence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Essvee Polymers (P) Ltd. v. CCE - [2004 (165) E.L.T. 291 (T) = 2004 (93) ECC 305 (T)] (viii) Gian Mahtani v. State of Maharashtra - 1999 (110) E.L.T. 400 (S.C.) The Apex Court has held that "according to the system of jurisprudence which we follow, conviction can not be based on suspicion nor on the conscience of the Court being morally satisfied about the complicity of an accused person. He can be convicted and sentenced only if the prosecution proves its case beyond all reasonable doubt." 8.The contention of the Revenue is that when the Director of M/s. H.H. Traders (P) Ltd. admitted during the investigation that they were receiving excisable goods from M/s. Prince Gutka Ltd. and reiterate the finding of the adjudication or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cturer M/s. Prince Gutka Ltd. The only evidence relied upon by the Revenue in support of demand in the appeal filed by the Revenue is the statement of Shri S.P. Sharma and the time of cross-examination deposed in favour of the manufacturer i.e. M/s. Prince Gutka Ltd. We find that during the cross-examination Shri S.P. Singh admitted the fact that Firm is dealing with the goods manufactured by M/s. Prince Gutka Ltd. During his cross-examination he also admitted that entries in abbreviations are in respect of the Scented Supari etc. and are not in respect of Gutka or Pan Masala. No suggestion was put by the Revenue regarding his explanation in favour of the manufacturing Firm. Further, we find that for the earlier period, the explanation give ..... X X X X Extracts X X X X X X X X Extracts X X X X
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