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2016 (7) TMI 864 - CESTAT NEW DELHIClandestine removal of goods - Department has recovered photocopies of four invoices from some sources - recovery of loose sheets of papers - 26 nos. of Gate Pass Books were recovered by the Department - Held that:- it is imperative that the contents of photocopies should be compared with the contents of their respective originals. In absence of the original documents, the photocopies, not being even secondary evidence, are not admissible in evidence. No enquiries have been conducted by the Department at the buyer's end to verify as to whether they have purchased the goods covered under the alleged photocopy of invoices from the appellant. Therefore, demand of duty in such an eventuality will not sustain. The onus to prove the involvement of the appellants in clandestine activity with the intent to evade payment of duty has not been satisfactorily discharged by the Revenue, justifying confirmation of the duty demand. Suspicion however grave cannot replace proof and that the Revenue is not relieved altogether of burden of producing some credible evidence in respect of the facts in issue. In the case in hand, admittedly the Revenue has not brought any tangible evidence to discharge its burden of proof of clandestine removal of goods. It is an admitted fact on record that the Department has not carried out any physical verification of alleged shortage in stock and the same was based on eye estimation only. Thus, in absence of actual physical weighment of stock of finished goods, the allegation of shortage, in my considered view, is not sustainable. Demand set aside - Decided in favor of assessee.
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