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TMI Blog2005 (6) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... nd raised presumption as against the assessee on the sole ground that purchase bills were in their name and payment details also stand reflected in the books of account of supplier; if they have sold base paper, it is for them to establish the same fact. The ld. Commissioner erred in his observation and not applying the principle of degree of proof, which is equally applicable to the assessee as in the case of the Department. The Department alleges clandestine removal of the goods, prima facie, has to prove the same by proper and cogent evidence when it is the contention of the assessee that part of the base paper was not utilized in the capital consumption and sold outside while maintaining the record, the same is to be taken into consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of production as well as undervaluing the goods. Therefore, a search was carried out in the factory premises as well as their registered office. The incriminating documents were recovered and after subjected to detailed scrutiny, the statement of the concerned persons as well as the suppliers of raw materials were also recorded and a case has been registered. Show Cause Notice dated 23-8-1990 was issued proposing why the duty amount of Rs. 1,17,38,886/- should not be recovered and penalty should not be imposed under Rule 173Q? Shri Mahesh C. Thakkar, Shri Shailesh C. Thakker and Shri Anil C. Thakker, the other appellants, were also required by the Show Cause Notice as to why penalty should not be imposed on them under Rule 209A of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said Notification could be considered, but the quantification of the duty on the alleged clandestine removal would influence the applicability of the Notification and imposition of penalty too. Thereafter, the Collector of Central Excise, Ahmedabad, decided the matter once again by an order dated 29-1-98, confirming the duty and penalty as per the earlier order. The appellants have filed appeal once again before the Tribunal at Mumbai on the ground that no opportunity was afforded to them for hearing. Thereafter, the matter has been once again remanded with a direction to provide one more opportunity to the applicants to submit a reply to the Show Cause Notice and their arguments and to dispose of the case in accordance with the law. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to say anything regarding grading of sheets and the investigation failed miserably to extract confession from him regarding the percentage of 1st, IInd and IIIrd grade sheets manufactured by them. Hence, grading of sheet based on solitary confession of unauthorized person like Shri Suthar, chemist, does not cements the allegation made in the Notice . 9. Further, the observation of the ld. Commissioner in the next para is as follows :- ...... Even if the party's argument that Shri Vishnubhai Patel is proper and authorized person to say anything about the grading of sheets as if having an intentional decree on same is taken for granted, the silence kept by him during the course of recording statement to come with actual fact regarding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te color crime, the tax evasion is also done in darkness of night. No one leaves wide hole of evidence to be easily trapped in . 12. As seen from the aforesaid observation, the ld. Commissioner is in doubtful state of mind as to the application of level of degree of evidence or proof required to establish the clandestine manufacture and removal as they are not criminal proceedings and while holding so, he has thrown the burden on the assessee to establish the said fact and raised presumption as against the assessee on the sole ground that purchase bills were in their name and payment details also stand reflected in the books of account of supplier; if they have sold base paper, it is for them to establish the same fact. 13. The ld. Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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