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2014 (7) TMI 314 - CESTAT MUMBAIClandestine manufacture and removal of MS Ingots and MS re-rolled products - suppression of production - denial of cross-examination - Held that:- entries made in the private record relates to the clandestine manufacture and supply of finished goods without payment of duty. These entries have been corroborated by the authors that is Shri Thorve and Shri Yadav and confirmed by the Directors also. It is a settled position in law that admitted facts need not be proved - Revenue has discharged this burden more than adequately. Thereafter, the burden to prove the contrary shifts to the appellant. The decision of the Hon’ble Bombay High Court in Phoenix Mills Ltd. [2004 (1) TMI 89 - HIGH COURT OF JUDICATURE AT BOMBAY] refers. However, appellants have not produced any evidence to rebut the Revenue’s case. Therefore, the case of clandestine production and removal without payment of duty stands clearly established. whether the appellant would be eligible for cum-duty benefit, inasmuch as they have not collected excise duty separately - Held that:- appellants have cleared the goods without payment of duty and without the cover of any Central Excise invoices and the transactions were made in cash. Thus, there is no documentary evidence indicating that the price of the goods included the excise duty payable. Therefore, as per the decision of the Hon’ble Apex Court in the case of Amrit Agro Industries Ltd. (cited supra), the question of exclusion of duty element will not arise for determination of value under Section 4(4)(d)(ii) of the Central Excise Act, 1944 - Decided against assessee.
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