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2011 (9) TMI 875 - CESTAT BANGALOREDuty demand - Penalty - Confiscation of seized goods - Clandestine removal of goods - Onus to prove - Held that:- In a case of clandestine activity involving suppression of production and clandestine removal, it is not expected that such evasion has to be established by the Department in a mathematical precision. After all, a person indulging in clandestine activity takes sufficient precaution to hide/destroy the evidence. The evidence available shall be those left in spite of the best care taken by the persons involved in such clandestine activity. In such a situation, the entire facts and circumstances of the case have to be looked into and a decision has to be arrived at on the yardstick of ‘preponderance of probability’ and not on the yardstick of ‘beyond reasonable doubt’. Claim that if they procured raw materials, then they might be eligible for MODVAT credit to the tune of about Rs. 1.25 crores may be true. We have already held that the appellants have indulged in suppressing production and clearing the same without payment of duty. However, the benefit of MODVAT claim cannot be considered and allowed in the absence of duty paying documents for procurement of the raw materials. It is not as if that the raw materials could be procured only from duty paying sector - Duty demand penalty imposed is reduced - Decided partly in favour of assessee.
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