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TMI Blog2005 (3) TMI 335X X X X Extracts X X X X X X X X Extracts X X X X ..... ords and the submissions made by the appellants. I observe that : The Show Cause Notice proceeds on assumptions and presumptions. The use of the words such as "should have been manufactured", and "obviously appears to have been removed without payment of duty" amply confirms that it is based only on assumptions and presumptions. The Deputy Commissioner, instead of appreciating the fact that the Show Cause Notice is based purely on assumptions and presumptions, repeats the same assumptions in his order, which are not based on any verifiable facts. If not on assumptions, how can such things as "taking into consideration the actual wastage in the scrap before putting into use as well as the burning loss and accepting the fact of wastage/los ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fence and an admission of a gravely incriminating character would not, by itself, amount to a confession. (see Pakala Narayana Swamy v. Emperor, AIR 1939 P.C. 47)." In the present case, I find that the appellants have not even made an admission of a gravely incriminating character. The CEGAT, Eastern Zonal Bench, Kolkata, in the case of Commissioner of Central Excise, Patna v. Universal Polyethylene Industries reported in 2001 (130) E.L.T. 228 (Tri. - Kolkata), held that "It is well settled that charge of clandestine removal and clearance is a serious charge against the manufacturer which is required to be discharged by the Revenue by production of sufficient and tangible evidence. We do not agree with the Revenue's stand taken by them in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch as that Revenue has to show that appellants have purchased the inputs from market and utilised the same and that the same has been sold to particular persons through invoices or otherwise and the money has flowed back as capital.............Be that as it may, the Revenue is required to show that appellants have purchased raw materials valued more than Rs. 1.09 crores. It is the specific plea of the appellants that the inputs are supplied under licence under the Explosives Act and they are required to purchase only through Governmental sources. This was explained by the Managing partner when he was examined by the Investigating officers. Therefore at the time of investigation it was the duty of the said officers to have contacted the sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts that the scribe of the notebook is required to be examined and details of the notebook is required to be proved as in the case of CCE v. Raman Ispat (P) Ltd., CCE, Mumbai v. Mira Silk Mills, CCE, Patna v. Universal Polythene Industries, CCE, Chandigarh v. Indian Hume Pipes Co., Deepak Tandon v. CCE, Bhubaneswar, Shree Bhallabh Glass Works v. CCE, Ahmedabad, etc. (all supra). In view of the revenue not having proved any evidence of the manufacture or removal without payment of duty in this case except the seized notebook which entries has not been proved including the scribe not having been examined, therefore applying the ratio of all the judgments noted supra, the impugned order is set aside and the appeals are allowed." 7. Following ..... X X X X Extracts X X X X X X X X Extracts X X X X
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